United States Court of Appeals
For the First Circuit
No. 05-1559
UNITED STATES OF AMERICA,
Appellee,
v.
JODY DIXON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya and Lipez, Circuit Judges,
and Saylor,* District Judge.
J. Martin Richey, Federal Defender Office, for appellant.
Robert E. Richardson, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
May 26, 2006
*
Of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. After defendant-appellant Jody
Dixon pleaded guilty to five counts of mailing threatening
communications, see 18 U.S.C. § 876, the district court determined
that he harbored an intent to make good on his graphic threats.
That finding precipitated a six-level enhancement under the
applicable federal sentencing guideline. See USSG §2A6.1(b)(1).
The court then imposed a 115-month incarcerative sentence,
corresponding to the top of the guideline sentencing range (GSR).
In this appeal, Dixon principally contends that the
district court erred in applying the intent enhancement. That
contention requires us to construe, for the first time, the
mechanics of that enhancement. Secondarily, Dixon contends that
the district court imposed an unreasonable sentence. After careful
consideration of these initiatives, we uphold both the intent
enhancement and the overall sentence.
I. BACKGROUND
Roughly three years prior to the commission of the
offenses of conviction, a Middlesex County (Massachusetts)
Assistant District Attorney, Jill Goldstein, prosecuted Dixon for
breaking and entering and related offenses. On February 26, 2001,
Dixon entered guilty pleas to a number of those charges and was
ordered to serve over three years in prison.
We fast-forward to September 15, 2003. On that date,
while serving his sentence at the Souza-Baranowski Correctional
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Center (SBCC) in Shirley, Massachusetts, Dixon mailed six
envelopes: three to Goldstein, two to Middlesex County District
Attorney Martha Coakley, and one to Massachusetts Attorney General
Thomas Reilly. The envelopes, each of which contained a vile
letter, were delivered the following day.
The letters sent to Goldstein included phrases such as
"Kill Jill" (repeated over sixty times), "You will die soon," and
"I hope you haven't forgotten are [sic] little date with a switch
blade." At least one of these missives appeared to have been
smeared with bodily substances (blood and excrement). One of the
notes addressed to Coakley appeared to have been similarly smeared.
In that communique, Dixon — who was HIV-positive and had been
diagnosed with hepatitis B and C — wrote: "My Aids infected body
fluid. Enjoy."
The envelope mailed to Reilly contained both a letter and
a white powder. Laboratory testing later revealed that the white
powder was not anthrax (as initially suspected) but a harmless
compound. The letter itself appeared to have been smeared with the
same sorts of bodily substances as the other letters. Its text
read as follows: "Ashes to ashes and they all fall down. Think of
all the memories lost like I give a shit. Actually I do give a
shit and here it is along with my Aids infected blood. Enjoy."
While none of the intended recipients personally opened
the envelopes, the office employees who performed that task were
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fearful that they might have contracted infections. One of those
staffers subsequently underwent several blood tests to ensure that
Dixon's diseases had not been transmitted to him. Meanwhile,
laboratory studies disclosed that "blood and matter consistent with
fecal material were, in fact, smeared on the letters."
Because all the envelopes contained Dixon's name, inmate
number, and address, the authorities had no difficulty in figuring
out who was responsible for the mailings. On September 16, 2003
(the same day that the letters were delivered), a Massachusetts
state trooper and a postal inspector repaired to SBCC. Dixon
waived his Miranda rights, see Miranda v. Arizona, 384 U.S. 436,
444 (1966), and freely admitted writing and mailing the letters.
Dixon made a number of other damaging admissions to the
investigators. For example, he explained that he would really like
to kill Goldstein because of the way she had treated him during the
prosecution of the breaking and entering offenses. Complaining
that Goldstein thought she was "better than the rest," he boasted
that he would murder her the next day if he was not incarcerated.
He even spelled out his plan: he would lurk in a hallway of the
Cambridge courthouse and use a knife to do the deed because he
wanted to get "up close and personal" and watch Goldstein's blood-
spattered body drop to the floor.
Although Dixon disclaimed any personal antipathy toward
either Coakley or Reilly, he nonetheless stated that, if given the
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opportunity, he would "cave both their heads in" with a baseball
bat. Finally, he admitted that he had, in fact, smeared his blood
and excrement on the letters. In that regard, he explained that,
having contracted HIV and hepatitis B and C, he wanted other people
to experience those diseases. He also professed a belief that it
would be easier to pass along hepatitis than HIV through contact
with the bodily substances coated on the letters.
In due course a federal grand jury, while eschewing a
true bill with respect to one of the Coakley letters, charged Dixon
with five counts of sending threatening communications through the
United States mail. See 18 U.S.C. § 876. Within a matter of
months, Dixon pleaded guilty to all five counts. The district
court ordered the preparation of a presentence investigation report
(the PSI Report).
The base offense level for the offenses of conviction was
12. See USSG §2A6.1(a)(1). The PSI Report recommended a six-level
enhancement because the offenses involved conduct evincing an
intent to carry out the threats. See id. §2A6.1(b)(1). It also
recommended a two-level enhancement on the ground that more than
two threats had been directed at Goldstein, see id. §2A6.1(b)(2),
a three-level enhancement on the ground that the intended victims
were government officials, see id. §3A1.2, a three-level
enhancement under grouping rules, see id. §3D1.4, and a three-level
reduction for acceptance of responsibility, see id. §3E1.1.
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Dixon objected only to the recommended intent
enhancement. He contended that he had sent the letters in order to
remain in prison and that he never wished to harm the intended
recipients. In support of that position, he produced a
psychological evaluation performed by Scott Bresler, Ph.D. In his
report, Dr. Bresler, relying in part on psychiatric records from
both SBCC and Bridgewater State Hospital (BSH), concluded that
Dixon was in a psychologically unbalanced state when he was first
seen at BSH less than a month after sending the threatening
communiques. Dr. Bresler also noted that, once Dixon had been
transferred from SBCC to BSH, he told the resident psychologist
(who diagnosed him as suffering from obsessive compulsive and
generalized anxiety disorders) that he believed he lived better in
jail than on the streets. In a personal interview with Dr.
Bresler, Dixon reiterated his preference for life in prison, denied
any memory of writing the letters, and claimed that he had "no
intentions whatsoever" of harming the recipients. Dr. Bresler
opined that Dixon never intended to follow through on his threats
and only sent the letters because he "understood that [doing so]
would lead to indictments and ultimately, to further
incarceration."
The government countered with its own psychological
evaluation, performed by Christine Scronce, Ph.D. While Dr.
Scronce agreed that Dixon might have committed the offenses in part
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to extend his immurement, she did not believe that this motivation
negated a conclusion that Dixon wished to harm the intended
recipients of the letters. Although Dixon told her that he did not
really think that the recipients could contract his diseases
through contact with the bodily substances smeared on the letters,
Dr. Scronce questioned the veracity of that statement. She noted,
among other things, Dixon's admission to her that he wrote the
letters in order to lash out at the recipients, his lament that he
did not realize that others would open the mail, his assurance that
he never meant to harm unknown third parties (leaving the clear
implication that he did mean to harm the addressees), and his
admission to the investigators that he hoped the addressees would
contract his diseases. Based on these and other facts, Dr. Scronce
concluded that, at the time he committed the offenses, Dixon
"believe[d] he might be able to harm his victims by including his
blood and feces in the letters."
The district court convened the disposition hearing on
March 15, 2005. The court explained that its practice, under the
newly inaugurated advisory guidelines regime, was to "calculate and
consult the Guidelines first and then consider whether there are
any of the [18 U.S.C. §] 3553(a) factors that would indicate that
another sentence would be more reasonable and appropriate."
In calculating the GSR, the district court overruled
Dixon's objection to the intent enhancement; while it acknowledged
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Dixon's apparent desire to remain behind bars, the court found that
such a desire was not inconsistent with an intent to bring the
threats to fruition and that Dixon (who, in the court's view,
subjectively believed that he could transmit his diseases by
smearing the letters with his blood and feces) was guilty of
conduct evincing an intent to carry out the threats. The district
court envisioned its finding on the intent enhancement as
reinforced by Dixon's mailing of multiple letters and his statement
to the investigators that he meant to harm the intended recipients.
In the course of this ruling, the court deemed immaterial whether
or not the diseases actually could be transmitted through the mail.
The intent enhancement, when coupled with the
uncontroversial adjustments described above, yielded a total
offense level of 23. Dixon was in criminal history category VI.
Those integers produced a GSR of 92-115 months. See USSG ch. 5,
pt. A (sentencing table). Despite Dixon's importunings, the court
concluded that the factors enumerated in 18 U.S.C. § 3553(a) did
not warrant any deviation from the GSR. It then imposed an
incarcerative term of 115 months, explaining its rationale for
doing so in exquisite detail. This timely appeal ensued.
II. ANALYSIS
On appeal, Dixon assigns error to both the six-level
intent enhancement and the reasonableness vel non of his sentence.
We discuss these claims sequentially.
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A. The Intent Enhancement.
The statute underlying the offenses of conviction
criminalizes the knowing use of the mails to deliver a
communication containing a threat to injure the addressee. 18
U.S.C. § 876. To obtain a conviction thereunder, showing that the
perpetrator had an intention of seeing the threat through to
fruition is not required. See United States v. Koski, 424 F.3d
812, 817 (8th Cir. 2005). Rather, it is sufficient to show that
(i) the accused intended to make the menacing statement and (ii)
the intended recipient reasonably could have regarded it as a
threat. United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir.
1990).
Even though proof of a defendant's intent to carry out a
threat is unnecessary for establishing guilt under the statute of
conviction, the Sentencing Commission has made it relevant to an
evaluation of the seriousness of the conduct involved in the
offense (and, thus, to the determination of an appropriate
sentence). See USSG §2A6.1(b)(1) (calling for a six-level
enhancement "[i]f the offense involved any conduct evidencing an
intent to accomplish such threat"). Whether Dixon's conduct
evinced an intent to carry out his threats implicates questions of
both fact and law, and Dixon mounts challenges on both fronts. We
afford clear-error review to his fact-bound challenges, see United
States v. Jimenez-Otero, 898 F.2d 813, 814 (1st Cir. 1990), but
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consider the essentially legal question of whether the facts
sufficiently establish the requisite intent de novo, see United
States v. Carrasco-Mateo, 389 F.3d 239, 243 (1st Cir. 2004).
1. The Factual Challenges. As a factual matter, Dixon
asserts that the lower court clearly erred in drawing an inference
that he believed he could transmit HIV and hepatitis by smearing
his bodily substances on correspondence and, thus, in determining
that he intended to harm the addressees. In drawing the disputed
inference, the court relied principally on the following evidence:
(i) the letters were smeared with Dixon's blood and feces; (ii)
they expressed his desire to infect the intended recipients; and
(iii) Dixon was HIV-positive and had been diagnosed with hepatitis
B and C.
Nothwithstanding this evidentiary array, Dixon argues
that the court's inference is clearly erroneous. He notes that the
court never determined that it would be possible to transmit the
viruses by mailing letters permeated with bodily substances.
Without such proof, he avers, the remaining evidence is too flimsy
to ground the court's finding. This argument lacks force.
To be sure, a district court charged with determining
whether a defendant believed it to be possible to effectuate a
threat is free to consider the apparent impossibility of using a
given means to achieve a given end. See, e.g., State v. Block, 62
S.W.2d 428, 430 (Mo. 1933) (holding that a defendant could not
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intend to commit a crime "if the means employed are so clearly
unsuitable that it is obvious that the crime cannot be committed").
Withal, objective impossibility does not necessarily preclude
subjective belief. See United States v. Joiner, 418 F.3d 863, 867
(8th Cir. 2005) (finding that defendants had the necessary scienter
even though they incorrectly believed they could use U.C.C.
financing statements to create a fraudulent lien on real estate).
Although there may be cases in which factual impossibility is so
nose-on-the-face plain as to negate any finding of subjective
belief (say, for example, that the question was whether the
defendant believed she could kill a person by hitting him over the
head with a strand of spaghetti), this is not such a case. Even if
we assume, for argument's sake, that it is impossible to transmit
HIV and/or hepatitis by smearing bodily substances excreted by an
infected person on a letter — and there is not a shred of proof to
that effect in the record — that assumed fact is far from obvious.
Indeed, at least one of the individuals who handled the threatening
letters subsequently underwent extensive testing precisely because
of his fear that infection might be possible.
Dixon also attacks, as against the weight of the
evidence, the district court's conclusion that his admissions to
the investigators provided additional support for an intent
enhancement. Emphasizing Dixon's desire to remain behind bars, the
absence of any proof that his diseases were communicable via the
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tainted letters, and Dr. Bresler's testimony, Dixon seems to be
saying that the district court clearly erred in attaching any
weight to his admissions to the investigators.
Clear-error review is deferential. Under that standard,
we must accept the lower court's findings of fact unless, after
perusing the record as a whole, we are left with a strong and
abiding conviction that a mistake has been made. See United States
v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). The record here does
not encourage such a conviction; the evidence is conflicting, and
the resolution of these conflicts depends on which set of
inferences the trier finds persuasive. Where, as here, the
sentencing record supports two or more competing inferences, the
sentencing court's choice among them cannot be clearly erroneous.
See United States v. Ruiz, 905 F.2d 499, 507 (1st Cir. 1990).
Viewed in this light, Dixon's fact-bound challenges
collapse. We hold, without serious question, that the sentencing
court did not clearly err in finding that Dixon actually believed
that he could transmit his diseases by smearing his bodily
substances on the letters. Nor did the court clearly err in
attaching weight to the admission that he meant to injure the
intended recipients of his unsanitary epistles.
2. The Legal Challenge. Dixon next asseverates that the
government's failure to offer proof that it would have been
possible for him to transmit his diseases by mail precluded the
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district court, as a matter of law, from applying the intent
enhancement. This is a legal rather than a factual argument,
suggesting that the facts as found by the sentencing court simply
do not justify imposition of the enhancement. Consequently, the
argument engenders de novo review. See, e.g., United States v.
Newell, 309 F.3d 396, 400 (6th Cir. 2002); United States v. Taylor,
88 F.3d 938, 942 (11th Cir. 1996).
Although the district court looked to the totality of the
circumstances in reaching its decision to invoke the intent
enhancement, Dixon correctly points out that the record contains no
evidence that it would be possible to transmit HIV and hepatitis
viruses by smearing bodily substances on correspondence. Building
on this foundation, he maintains that his beliefs and intentions
with respect to his smearing of the letters provide no support for
an intent enhancement and that the remaining facts are insufficient
as a matter of law to sustain the enhancement.
This claim of error boils down to the thesis that factual
impossibility is a legal defense to the imposition of the intent
enhancement. We reject that thesis.
Factual impossibility occurs when a circumstance unknown
to the defendant prevents him from achieving a specific objective.2
See United States v. Waldron, 590 F.2d 33, 35 (1st Cir. 1979). On
2
By contrast, legal impossibility exists when a defendant sets
out to achieve an objective which, even if achieved as envisioned,
will not constitute a crime. See United States v. Sobrilski, 127
F.3d 669, 674 (8th Cir. 1997).
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Dixon's thesis, the proscribed objective is injuring the intended
recipients and the unknown circumstance is the impossibility of
transmitting his diseases by bodily substances smeared on
correspondence. We proceed to examine the premise on which this
thesis rests.
Recognizing that conduct falling short of a completed
criminal objective still may pose a real threat to social order, we
long have held that factual impossibility is not a defense to
either liability or sentencing enhancements for inchoate offenses
such as conspiracy or attempt. See, e.g., United States v.
Belardo-Quiñones, 71 F.3d 941, 944 (1st Cir. 1995); United States
v. Chapdelaine, 989 F.2d 28, 35 (1st Cir. 1993); United States v.
Giry, 818 F.2d 120, 126 (1st Cir. 1987); Waldron, 590 F.2d at 34-
35. Since the elements of those offenses do not require that the
unlawful goal be achieved, factual impossibility is irrelevant.
See Belardo-Quiñones, 71 F.3d at 944. It is against this legal
mise-en-scêne that we turn to the sentencing guidelines in order to
determine the relevant elements of the intent enhancement.
A court charged with the interpretation of a sentencing
guideline should look first to the plain language of the guideline
and, unless the Sentencing Commission has clearly indicated an
intention to give a certain term a special or guideline-specific
meaning, should apply that language as written, assigning commonly
used words their ordinary meaning. See United States v. Thompson,
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32 F.3d 1, 5 (1st Cir. 1994); United States v. Brewster, 1 F.3d 51,
54 (1st Cir. 1993). In this instance, section 2A6.1(b)(1) states
that the six-level enhancement should be imposed "[i]f the offense
involved any conduct evidencing an intent to carry out such
threat." Given its ordinary meaning, this plain language denotes
that the application of the enhancement turns on a defendant's
subjective intent, without regard to factual impossibility.
In an effort to contradict this plain meaning, Dixon
argues that the commentary to section 2A6.1 gives the word "intent"
a special meaning, adding an element of likely success. Read in
context, the commentary to which Dixon adverts furnishes no support
for this optimistic argument.
Section 2A6.1 supplies sentencing guidelines for a host
of crimes involving various forms of threatening or harassing
communications. One common denominator of these offenses is that,
typically, they criminalize conduct regardless of whether the
putative defendant was merely trying to scare (rather than actually
harm) the intended recipient. See, e.g., Koski, 424 F.3d at 817
(holding intent to carry out credible threat irrelevant to
determination of guilt under 18 U.S.C. § 876); United States v.
Stewart, 411 F.3d 825, 828 (7th Cir. 2005) (similar); see also
United States v. Lincoln, 462 F.2d 1368, 1369 (6th Cir. 1972)
(holding that, under the similarly structured "threatening the
president" statute — 18 U.S.C. § 871 — it is not necessary that the
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threat be uttered with a willful intent to carry it out).
Therefore, proof that the defendant either desired to inflict
physical harm or took any steps in that direction is not essential
to a conviction. See, e.g., Koski, 424 F.3d at 817.
Recognizing that this group of statutes spans a wide
range of conduct, the Sentencing Commission compiled a number of
specific offense characteristics to grade the seriousness of a
defendant's conduct. These specific offense characteristics are
meant to distinguish conduct based "upon the defendant's intent and
the likelihood that the defendant would carry out the threat."
USSG §2A6.1, comment. (backg'd.). It is this statement, Dixon
suggests, that renders the specific offense characteristic at issue
here — the intent enhancement — inapplicable where, due to factual
impossibility, the threat cannot materialize.
This reading of the Sentencing Commission's background
commentary elevates hope over reason. The statement to which Dixon
alludes is not specific to the intent enhancement but, rather,
addresses the entire litany of specific offense characteristics
listed under section 2A6.1. That enumeration includes an array of
different factors. See, e.g., id. §2A6.1(b)(2) (dealing with the
number of threats made); id. §2A6.1(b)(5) (dealing with the extent
of the premeditation that went into making a particular threat).
Consequently, the most natural interpretation of the commentary is
one that respects the plain language of the intent enhancement: the
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Commission formulated section 2A6.1(b)(1) to distinguish conduct
based solely on a defendant's subjective intent. It then proceeded
to design the remaining specific offense characteristics to
distinguish conduct based on the likelihood that the defendant
would succeed in carrying out his threat.
To sum up, this is not a situation in which the
Sentencing Commission, in framing an enhancement, clearly aspired
to employ a special or guideline-specific definition. Thus, we are
duty-bound to read the intent enhancement as written, in accordance
with its plain meaning. See Thompson, 32 F.3d at 5; Brewster, 1
F.3d at 54. Reading the guideline in that manner, a sentencing
court must find that a defendant subjectively intended to carry out
a threat before imposing the additional six levels. It follows
inexorably that factual impossibility is no defense to the
deployment of that enhancement and, therefore, that the district
court did not commit legal error in applying the enhancement here.3
3
We note in passing that there is some disagreement concerning
whether a court, in imposing the intent enhancement, can rely
solely on the threats that form the basis of the indictment or
whether the defendant must engage in some overt conduct, over and
beyond those threats, to evince the requisite intent. Compare
United States v. Bohanon, 290 F.3d 869, 875 (7th Cir. 2002)
(finding threats alone sufficient), with Newell, 309 F.3d at 404
(requiring exogenous conduct), and United States v. Goynes, 175
F.3d 350, 355 (5th Cir. 1999) (same). We need not probe this point
for two reasons. First, Dixon never raised it. Second, this case
involves at least two instances of exogenous conduct, namely,
Dixon's act of smearing the letters and his subsequent admission to
the investigators that he wanted to kill Goldstein. Hence, we
leave the issue for another day.
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B. Reasonableness.
We turn next to Dixon's back-up argument: that, even with
the intent enhancement, his 115-month sentence is unreasonable.
The district court sentenced Dixon subsequent to the
Supreme Court's watershed decision in United States v. Booker, 543
U.S. 220 (2005). Booker rendered the guidelines advisory, id. at
245, and sentences imposed post-Booker are reviewable for
reasonableness, regardless of whether they fall inside or outside
the applicable GSR. United States v. Jiménez-Beltre, 440 F.3d 514,
519 (1st Cir. 2006) (en banc).
Although the guidelines have become advisory rather than
mandatory, determining the correct GSR remains an appropriate
starting point for constructing a defendant's sentence. See id. at
518. Once the sentencing court has established the GSR (including
a consideration of any applicable departures), it must then evaluate
the sentencing factors set out in 18 U.S.C. § 3553(a),4 along with
4
Those factors include:
(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) the need for the sentence imposed — (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, medical care, or other correctional
treatment . . . ; (3) the kinds of sentences
available; (4) the kinds of sentence and the
sentencing range established for . . . the
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any other relevant considerations. Finally, it must determine, in
light of that assessment, whether a sentence above, within, or below
the GSR is warranted. United States v. Alli, 444 F.3d 34, 40 (1st
Cir. 2006). The goal is to fashion "a sentence sufficient, but not
greater than necessary," for the achievement of the legitimate
objectives of sentencing. 18 U.S.C. § 3553(a).
Reasonableness entails a range of potential sentences, as
opposed to a single precise result. See Jiménez-Beltre, 440 F.3d
at 519; cf. United States v. Ocasio, 914 F.2d 330, 336 (1st Cir.
1990) ("Reasonableness is a concept, not a constant.").
Consequently — leaving to one side errors of law, see, e.g., United
States v. Pho, 433 F.3d 53, 60 (1st Cir. 2006) — appellate review
of a district court's post-Booker sentencing decision focuses on
whether the court has "adequately explained its reasons for varying
or declining to vary from the guidelines and whether the result is
within reasonable limits." United States v. Scherrer, 444 F.3d 91,
93 (1st Cir. 2006) (en banc). Where the district court has
substantially complied with this protocol and has offered a
applicable category of offense committed by the
applicable category of defendant as set forth in
the guidelines . . . ; (5) any pertinent policy
statement . . . issued by the Sentencing Commission
. . . ; (6) the need to avoid unwarranted sentence
disparities among defendants with similar records .
. . ; and (7) the need to provide restitution to
any victims of the offense.
18 U.S.C. § 3553(a).
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plausible explication of its ultimate sentencing decision, we are
quite respectful of that decision. See Alli, 444 F.3d at 40-41.
Here, the sentencing court's stated methodology comports
with the Jiménez-Beltre protocol, and — aside from his attack on the
intent enhancement, previously rejected, see supra Part II(A) —
Dixon does not challenge the architecture of the GSR. Instead, he
exhorts us to find that the court stumbled at the next step.
We start this phase of our inquiry with what the court
said and did in crafting a 115-month incarcerative sentence. Using
a wide-angled lens, the court focused on a variety of factors,
including Dixon's long history of criminal activity, drug use, and
instability; his admission that he functioned better in prison than
in society; and the likelihood that he would have harmed the
intended recipients of the letters had he not been confined. Citing
these concerns, the court explained that its "primary purpose" in
imposing the 115-month sentence was "to protect society from the
danger that [Dixon] represent[s]." This is not only a record-rooted
conclusion but also a reflection of a permissible consideration in
the sentencing calculus. See 18 U.S.C. § 3553(a)(2)(C). The court
added that it was sentencing Dixon at the apex of the GSR so as to
send a message to other convicts who might "think that it's amusing
to send threatening letters" to prosecutors. That statement, too,
reflects a permissible sentencing consideration. See id. §
3553(a)(2)(B).
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Dixon, ably represented, strives to persuade us that the
sentencing court placed too much emphasis on deterrence while at the
same time failing to consider other pertinent factors, such as the
special "nature and circumstances of the offense[s]," id. §
3553(a)(1), and the need to provide "medical care, or other
correctional treatment in the most effective manner," id. §
3553(a)(2)(D). As to the former, he argues that his conduct is best
viewed as a "plea for help"; as to the latter, he argues that his
drug addiction and mental health problems confirm that he needs
assistance, not incapacitation.
If the court had completely disregarded these sentencing
factors, this might be a different case. Here, however, the record
makes manifest that the judge pondered each of the two factors cited
by Dixon; he simply came to a different, yet altogether plausible,
conclusion as to their salience. The court reasoned that Dixon's
conduct, whether or not evincing a plea for help, showed that were
he to be released before being given a meaningful opportunity for
rehabilitation, he would pose a real danger both to the intended
recipients of the letters and to society at large. The court also
determined that a 115-month incarcerative term would afford Dixon
sufficient time and opportunity to get his drug and mental health
problems under control. To this end, the court cleared Dixon to
participate in the correctional facility's 500-hour drug treatment
program, suggested that the Bureau of Prisons consider the
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psychological evaluations submitted by Drs. Bresler and Scronce, and
noted that the correctional facility would be well-equipped to deal
with Dixon's mental health needs.
This analysis is both sufficiently specific and
sufficiently plausible. While a sentencing court must consider all
of the applicable section 3553(a) factors, it is not required to
address those factors, one by one, in some sort of rote incantation
when explicating its sentencing decision. See Scherrer, 444 F.3d
at 94; Alli, 444 F.3d at 41. Nor is there any requirement that a
district court afford each of the section 3553(a) factors equal
prominence. The relative weight of each factor will vary with the
idiosyncratic circumstances of each case, see United States v.
Sagendorf, ___ F.3d ___, ___ (1st Cir. 2006) [No. 05-1991, slip op.
at 6], and the sentencing court is free to adapt the calculus
accordingly. That is a common-sense proposition: in the last
analysis, sentencing determinations hinge primarily on case-specific
and defendant-specific considerations.
Our conclusion that the district court considered all the
section 3553(a) factors brings us to the ultimate issue: the
reasonableness vel non of the sentence imposed. That inquiry need
not detain us. Given the court's supportable concern regarding the
risk that Dixon would pose to society if prematurely released, there
is an adequate basis in this instance for affording heavy weight to
specific deterrence. With that in mind, and giving credence both
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to the court's entirely plausible explication of why it chose a 115-
month sentence and to the deferential standard of review, there is
no principled way for us to label the sentence as unreasonable.
III. CONCLUSION
We need go no further. To summarize succinctly, we
conclude that the district court's decision to apply an intent
enhancement under USSG §2A6.1(b)(1) is unimpugnable; that the court
sufficiently considered all the relevant sentencing factors; that
the court plausibly explained its rationale for the length of the
sentence imposed; and that the sentence falls within the realm of
reasonableness.
Affirmed.
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United States v. Dixon
Court: Court of Appeals for the First Circuit
Date filed: 2006-05-26
Citations: 449 F.3d 194
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