United States v. Mabie

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-3526
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
William J. Mabie, *
*
Appellant. *
___________

Submitted: September 20, 2011
Filed: December 2, 2011
___________

Before MELLOY, SMITH, and BENTON, Circuit Judges.
___________

SMITH, Circuit Judge.

A jury found William Mabie guilty of three counts of mailing threatening
communications, in violation of 18 U.S.C. § 876(c), and one count of interstate
communication of a threat, in violation of 18 U.S.C. § 875(c). The district court1
sentenced Mabie to 88 months' imprisonment. Mabie appeals both his conviction and
sentence, arguing that (1) the district court violated his right to self-representation, (2)
the district court abused its discretion in quashing the witness subpoenas that Mabie
requested, (3) insufficient evidence exists to support his convictions, (4) Mabie's

1
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
conviction under § 876(c) violates his First Amendment rights, (5) the district court
erred in assessing a two-level obstruction-of-justice enhancement, and (6) Mabie's
sentence is unreasonable. We affirm.

I. Background
On July 23, 2009, a federal grand jury returned a superceding indictment
charging Mabie with seven counts of making threatening communications. Mabie
requested to proceed pro se, and, on April 22, 2010, the district court granted Mabie's
request. Mabie filed a number of pro se motions for witness subpoenas. The district
court held two hearings in which it determined, among other things, whether and to
whom subpoenas should be issued. In a hearing before the court on May 7, 2010,
Mabie repeatedly interrupted the court and prosecutor. In another hearing on June 23
and 24, 2010, Mabie accused the court of lying, demonstrated a lack of decorum, and
ultimately refused to participate in the proceedings. At the conclusion of the hearing,
the district court authorized the issuance of witness subpoenas to 42 proposed
witnesses, and soon thereafter Mabie dispatched a series of letters in which he openly
boasted of using the court's subpoena power for the purpose of harassing proposed
witnesses and their families and offered to drop the subpoenas if he was paid $21,000.

On July 14, 2010, the government filed motions to revoke Mabie's pro se status
and to quash his numerous trial subpoenas. Following a hearing, the district court
granted the government's motion to revoke and granted in part and denied in part the
motion to quash. In its opinion, the district court noted that, "when given authority to
request subpoenas, [Mabie] has abused the process afforded to him. He has made open
and veiled threats to some proposed witnesses and attempted to solicit money in
exchange for withdrawing subpoenas." The court also noted that Mabie was "intent
on pursuing theories that will consistently be disallowed, and he becomes openly
hostile and inattentive to rulings and objections. He . . . has demonstrated serious
abuse of court empowerment." The district court quashed subpoenas to 34 of Mabie's
proposed witnesses.

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 Trial evidence showed that Mabie worked for Affordable Towing in St. Louis,
Missouri, until the spring of 2007. After that job ended, Mabie made phone calls and
sent letters to Steve Reisch, the owner of Affordable Towing. Mabie demanded the
return of tools and a toolbox that he had left at the business. In July 2008, Mabie sent
an anonymous letter to Reisch's elderly mother, Betty Reisch, at her unlisted home
address in Kirkwood, Missouri. In the letter, Mabie accused her "pothead son" of
stealing from him and stated that

the only way he could get away with it is if no one knows who did it, and
the ACTUAL owner is not ready to put several bullets in his head and
his kids and grandkids heads.

This is a problem, as it would take hours to clean up the blood.

Betty Reisch had only one son, Steve Reisch, and the letter was signed in the name of
her deceased husband, Forrest Reisch. Betty Reisch testified that she had no idea who
sent the letter and that she was "very much" afraid when she received it. Steve Reisch
reported the letter to police.

Mabie made objectionable communications to a number of other people. Mabie
called Steve Reisch's friend, Lieutenant Mike Deeba of the St. Louis Metropolitan
Police Department (SLMPD). In one voice message left on Lieutenant Deeba's office
phone, Mabie suggested that someone should check on Lieutenant Deeba because he
"might be up in his office hanging himself or committing suicide." In another
message, Mabie declared that June 5 was "Charles Deeba's birthday, or would be if
he was still alive. Funny how I know things like this isn't it. . . . See you in
Greenville." Charles Deeba was Lieutenant Deeba's deceased uncle, and at the time
Lieutenant Deeba and his family lived in Greenville, Illinois. Mabie also spoke with
Sergeant Al Klein of the SLMPD, who asked Mabie to stop contacting Lieutenant
Deeba. Mabie told Sergeant Klein, "I was right there in Barnes Hospital when . . .
Sergeant Dodge brought in a [sic] Bob Stanze. With that cemetery blue look. I think

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Deeba would look about right that color. I can hit what I'm aiming at for 400 f---ing
yards." Bob Stanze was a SLMPD officer who was fatally shot in the line of duty. On
August 4, 2008, Mabie told Sergeant Klein over the phone that if Sergeant Klein did
not investigate Lieutenant Deeba, Mabie would confront Lieutenant Deeba's wife.
Mabie also called Sergeant Tony Brooks of the Greenville Police Department and told
him that Lieutenant Deeba had challenged him to a gun fight:

But like I told him, that St. Louis police thinks a gun fight [is] at 15
yards. I'm, I'm from down here [in] Festus[, Missouri]. I think they
should be about 300. I'm fighting at 300, I don't think they can make it
at 15. So, anyway, yeah keep your eye on [Lieutenant Deeba's] address
though I serious[ly] doubt that[ ] it['s] going to be a tranquil area much
longer.

Sergeant Brooks went immediately to Lieutenant Deeba's residence and conducted a
search of the property. Lieutenant Deeba also went to Greenville and instructed his
wife and children on how to use firearms. That same day, officers from the Jefferson
County, Missouri Sheriff's Office went to Mabie's home and placed him under arrest.
Prior to his arrest, Mabie stated that he could shoot Lieutenant Deeba at 600 yards.

At trial, the government also presented evidence of letters that Mabie had sent
to two Franklin County, Missouri prosecutors. Mabie sent a handwritten letter to
Franklin County Prosecutor Rodney McKinney, who had prosecuted Mabie in 2004.
This letter, sent to McKinney's unlisted home address and dated February 12, 2009,
accused McKinney of "helping car thieves" and told McKinney to admit that he had
lied or Mabie would "stop by some evening, so we can work toward justice."
McKinney, who had been the target of a derogatory flier that Mabie circulated
following the 2004 prosecution, testified at trial that he thought this was an escalation
in Mabie's behavior and that he perceived that last statement as a threat. The letter
prompted McKinney to immediately contact the police.

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 On February 21, 2008, Franklin County Assistant Prosecutor Mary Choi, who
had prosecuted Mabie in 2006, also received a letter from Mabie. Mabie accused Choi
of prosecutorial misconduct and demanded that she "take corrective action." The letter
concluded: "A cornerstone of this society (for which countless have died) is a fair
Justice system, honesty is essential, correct your mistakes / without delay or suffer the
consequences." Choi testified that she perceived this last sentence as a threat to harm
her. She also believed that Mabie "was not a stable individual and was obsessed with
harassing people." As a precaution, Choi alerted security at the courthouse where she
worked of Mabie's comments and her concerns. Choi also received two additional
letters from Mabie at her unlisted home address, which were derogatory and
disturbing in nature. One letter, which was addressed to her husband, stated: "If Mary
. . . makes things right, she may have a happy life, but if she does not, these lies will
follow her forever, I AM ABSOLUTELY SURE IT WILL."

At trial, Mabie took the stand in his defense and testified that he did not intend
to harm anyone, did not dislike Mary Choi, and only wanted to "make things right."
Mabie was convicted of three counts of mailing threatening communications, in
violation of 18 U.S.C. § 876(c), and one count of interstate communication of a threat,
in violation of 18 U.S.C. § 875(c). On October 4, 2010, Mabie filed a pro se motion
to restore his right of self-representation, which the district court denied. At Mabie's
sentencing hearing on November 10, 2010, Mabie objected to a two-level
enhancement for obstruction of justice on each count. The district court determined
that the enhancement applied and sentenced Mabie to 88 months' imprisonment.

II. Discussion
Mabie raises six issues on appeal. He contends that (1) the district court violated
his right to self-representation, (2) the district court abused its discretion in quashing
the witness subpoenas that Mabie requested, (3) insufficient evidence exists to support
his convictions, (4) Mabie's conviction under § 876(c) violates his First Amendment

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rights, (5) the district court erred in assessing a two-level obstruction-of-justice
enhancement, and (6) Mabie's sentence is unreasonable.

A. Right to Self-Representation
First, Mabie argues that his pretrial actions did not rise to the level of disruption
that would warrant revocation of his pro se status, and even if they did, the district
court's failure to warn Mabie that his right to self-representation could be revoked or
to use any less restrictive means prior to reinstating counsel violated his right to self-
representation. "We review the district court's decision de novo." United States v.
Mosley, 607 F.3d 555, 558 (8th Cir. 2010).

While a defendant's right to self-representation is a highly valued right, Faretta
v. California, 422 U.S. 806, 819 (1975), it "is not absolute," Indiana v. Edwards, 554
U.S. 164, 171 (2008). "[T]he trial judge may terminate self-representation by a
defendant who deliberately engages in serious and obstructionist misconduct."
Faretta, 422 U.S. at 834 n.46. "The right of self-representation is not a license to
abuse the dignity of the courtroom" or "a license not to comply with relevant rules of
procedural and substantive law." Id.; see also United States v. Edelmann, 458 F.3d
791, 808–09 (8th Cir. 2006) ("'The right [to self-representation] does not exist . . . to
be used as a tactic for delay, for disruption, for distortion of the system, or for
manipulation of the trial process.'") (quoting United States v. Frazier-El, 204 F.3d
553, 560 (4th Cir. 2000)).

This case resembles Mosley, where we determined that the revocation of a
defendant's pro se status was warranted. 607 F.3d at 559. In that case, the defendant
had filed a number of unintelligible and frivolous pro se pleadings and motions in the
district court and had demonstrated an unwillingness to participate in pretrial
proceedings. Id. at 557–58. We found that the defendant's behavior "interfered with
pretrial proceedings and delayed the trial" and that "[t]here was good cause to believe
that [the defendant] would continue to disrupt the proceedings if the court permitted

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him to resume self-representation." Id. at 559; see also United States v. Gabrion, 648
F.3d 307, 331–32 (6th Cir. 2011) (finding that a defendant who was particularly
disruptive in pretrial hearings was not entitled to proceed pro se "[g]iven the totality
of [his] disruptive behavior," which included being "persistently disruptive and deeply
disrespectful in court," "fil[ing] numerous bizarre motions and letters," and
"committ[ing] forty major infractions while incarcerated").

As in Mosley, the totality of Mabie's disruptive behavior provided the district
court with sufficient grounds to revoke his pro se status. We find no error in the
district court's revocation of Mabie's pro se status. In pretrial hearings, Mabie
repeatedly disrupted the proceedings and was openly hostile, disrespectful to the
court, and inattentive. Mabie also sought to use the court's subpoena power to
dissuade potential witnesses. See United States v. Myers, 503 F.3d 676, 680–81 (8th
Cir. 2007) (determining that a pro se defendant who "made hundreds of pro se filings,
many frivolous or repetitive," and sent "threatening letters . . . to the Magistrate Judge
and the Assistant United States Attorney during the litigation" had "engage[d] in
serious obstructionist misconduct"). In a hearing on April 22, 2010, the district court
informed Mabie that he would be held to the same rules as an attorney if he proceeded
pro se. We find no merit in Mabie's argument that he was entitled to a more specific
warning before his right to self-representation was revoked or that the district court
was required to employ a less-restrictive means prior to reinstating counsel.2

2
Mabie cites to United States v. Dougherty, 473 F.2d 1113, 1125 (D.C. Cir.
1972), for the proposition that a "potentially unruly defendant may and should be
clearly forewarned that deliberate dilatory or obstructive behavior may operate in
effect as a waiver of his pro se rights." Although this language appears in Dougherty,
the court in that case was merely describing the role of standby counsel when a pro
se litigant is representing himself in court. Id. (explaining the line an amicus attorney
must walk between playing "a too conspicuous role" and "assum[ing] exclusive
control of the defense" in the event that the defendant's pro se status is revoked).
Mabie takes out of context the idea that the defendant must be given a warning before
his right to self-representation is revoked.

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 Nor did the district court err when it denied Mabie's request to proceed pro se
during sentencing. On August 3, 2010, two weeks before trial, Mabie sent a letter to
his attorney, in which he asked, "IS THE ONLY WAY TO GET YOU OFF THIS
CASE IS TO PHYSICALLY ASSAULT YOU IN THE COURTROOM? This case
is my entire life, if I have to go there I will[.]" As a result of the letter, the district
court arranged sua sponte for Mabie to wear a stun belt during trial, and the court
cautioned Mabie's attorney to stay a safe distance from Mabie during the trial. Based
on Mabie's misconduct throughout the course of the litigation and even up to the trial
itself, the district court had ample reason to believe that Mabie's noncompliance with
the relevant rules of procedure and substantive law would continue during sentencing.

B. Request for Subpoenas
Mabie also argues that the district court abused its discretion when it granted
the government's motion to quash 34 of Mabie's witness subpoenas and that quashing
the subpoenas violated his Fifth and Sixth Amendment rights.

A district court's decision to quash subpoenas is reviewed for an abuse of
discretion. United States v. Bueno, 443 F.3d 1017, 1026 (8th Cir. 2006). "The burden
is upon the requesting party to show that the desired witnesses are necessary to an
adequate defense, and reversal is only appropriate if 'the exceptional circumstances
of the case indicate that the defendant's right to a complete, adequate and fair trial is
jeopardized.'" United States v. Hang, 75 F.3d 1275, 1282–83 (finding that defendant
failed to establish that a witness's presence at trial was necessary to an adequate
defense) (quoting United States v. Wyman, 724 F.2d 684, 686 (8th Cir. 1984)). "Mere
allegations of materiality and necessity are not sufficient to establish that a witness is
necessary to an adequate defense." United States v. LeAmous, 754 F.2d 795, 798 (8th
Cir. 1985).

In ex parte hearings conducted before the district court on May 7, 2010, and
June 23 and 24, 2010, the district court gave Mabie the opportunity to justify a

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subpoena for each proposed witness. On July 20, 2010, Mabie requested additional
subpoenas, some of which the government challenged, and Mabie again had the
opportunity to support those subpoena requests. Mabie's proffered reasons fell well
short of providing exculpatory evidence. Mabie alleged that a few of the proposed
witnesses would have testified that he was trying to resolve the conflict with his
former employer properly; however, he did not establish how such testimony would
have affected the outcome of his case. Cf. United States v. Blade, 336 F.3d 754,
758–59 (8th Cir. 2003) (finding that a lower court did not abuse its discretion in
refusing to issue a subpoena because, even if the testimony of one witness may have
been relevant and material to the case, "the magistrate judge can hardly be faulted for
failing to root out the request for the [one relevant witness], buried in subpoena
requests for thirty-three mostly irrelevant witnesses"). The district court neither
abused its discretion nor violated Mabie's Fifth or Sixth Amendment rights by
quashing the subpoenas. See United States v. Rubin, 836 F.2d 1096, 1101 (8th Cir.
1988) (finding that the exclusion of evidence that was neither necessary to prevent a
fair trial nor favorable to the defense did not violate the defendant's constitutional
rights).

C. Sufficiency of the Evidence
Mabie contends that no reasonable jury could have found that each of the four
communications for which he was convicted contained a true threat in violation of 18
U.S.C. §§ 875(c) or 876(c). A "true threat" is defined as a "statement that a reasonable
recipient would have interpreted as a serious expression of an intent to harm or cause
injury to another." Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 624 (8th Cir.
2002) (en banc). Mabie cites United States v. Barcley for the proposition that a
communication that contains language "which is equally susceptible of two
interpretations, one threatening, and the other nonthreatening," is not a true threat
unless the government offers evidence "serving to remove that ambiguity." 452 F.2d
930, 933 (8th Cir. 1971). In Barcley, we concluded that the trial court should have
directed a verdict of acquittal because the defendant's letter to his attorney did not

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contain a true threat. Id. at 934. The letter stated, "'[A]s soon as I can get this case
situated around in the position I want you are the first S.O.B. that will go, [the
prosecutor] will [be] next.'" Id. at 932. Mabie argues that, just like the letter in
Barcley, the communications involved in this case are subject to multiple
interpretations, some of which are nonthreatening.

Barcley is distinguishable. First, in evaluating the sufficiency of the evidence
in Barcley, "we [were] mindful that the letter communicated a client's dissatisfaction
with the services of his attorney," a communication which falls within the purview of
the First Amendment. Id. at 933. Second, neither Barcley's attorney nor the prosecutor
referenced in the letter testified that they experienced fear upon reading the letter. Id.
at 934. In order to decide whether there is sufficient evidence from which the jury can
find that a reasonable recipient would interpret a communication as a threat, "the
communication must be viewed in 'textual context and also in the context of the
totality of the circumstances in which the communication was made.'" United States
v. Floyd, 458 F.3d 844, 849 (8th Cir. 2006) (finding that anonymous, photocopied
newspaper articles about a judge's murdered family with the phrase "Be Aware Be
Fair" written on the top and sent to judicial officers constituted a true threat and was
distinguishable from the communication in Barcley) (quoting United States v.
Bellrichard, 994 F.2d 1318, 1323 (8th Cir. 1993)). In Barcley, we were careful to
consider the context in which the letter was written and determined that, within that
context, the letter was not a threat. 452 F.2d at 934.

Material differences in both the content and context of the communications
distinguish those that Mabie made from those that Barcley made. Mabie's July 2, 2008
letter to Betty Reisch at her unlisted home address that was signed in the name of her
deceased husband accused Mrs. Reisch's son of stealing and stated that he could get
away with it only if "the ACTUAL owner [was] not ready to put several bullets in
[his] head and his kids and grandkids heads." The letter continued, "This is a problem,

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as it would take hours to clean up the blood." Mrs. Reisch testified at trial that she was
"very much" afraid when she received it.

Mabie's August 4, 2008 telephone conversation with Sergeant Brooks followed
a series of phone calls and messages to Lieutenant Deeba that had escalated in tone
and hostility. Mabie suggested that he knew where Lieutenant Deeba lived even
though Lieutenant Deeba's home address was unlisted, made references to Lieutenant
Deeba's wife by name, and suggested that he wanted to engage Lieutenant Deeba in
a "gun fight" with a high-powered rifle. After Mabie's phone conversation with
Sergeant Brooks, the Greenville Police Department searched Lieutenant Deeba's
property, and Lieutenant Deeba instructed his wife and children on how to use
firearms in the event that Mabie attacked them.

Mabie's February 21, 2008 letter to Prosecutor Choi, which was sent to her new
workplace in a different county several years after she prosecuted Mabie, also
constituted a true threat. Choi testified that she perceived the letter as a threat in part
because she was aware that Mabie was "not a stable individual." She shared the letter
with several coworkers and notified security at her office to be mindful of Mabie.
Choi also received two subsequent letters at her home address, one which was
addressed to her husband and stated, "If Mary . . . makes things right, she may have
a happy life, but if she does not, these lies will follow her forever, I AM
ABSOLUTELY SURE IT WILL."

Finally, Mabie's February 12, 2009 letter to Prosecutor McKinney, which was
sent to his home address years after McKinney's prosecution of Mabie, accused
McKinney of prosecutorial misconduct, demanded that McKinney admit to it, and
concluded, "If I don't hear from you, I'll stop by some evening, so we can work toward
justice." McKinney stated at trial that he perceived this statement as a threat, and he
alerted the St. Louis County Police Department soon after reading the letter.

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 The content of these four communications examined in the context in which
they were made could enable a reasonable jury to find that each communication
constituted a true threat under the law.

D. First Amendment Challenge
Mabie also alleges that 18 U.S.C. § 876(c) violates the First Amendment
because it is unconstitutionally overbroad and vague. Mabie argues that the statute is
overbroad because it does not require a finding that the defendant actually intended
the communication to be a threat. Mabie argues that the statute is vague because it
fails to define the term "knowingly."

1. Overbreadth Challenge
Mabie concedes that the First Amendment does not afford protection against
prosecution for true threats. He argues that the statute at issue is not limited to true
threats because it does not require a finding that the defendant actually intended to
communicate a threat. In support of his argument, Mabie cites Virginia v. Black, 538
U.S. 343, 359 (2003). Black involved a Virginia law banning cross burning. In Black,
the Supreme Court noted that "'[t]rue threats' encompass those statements where the
speaker means to communicate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of individuals." Id. Notably, the
Black Court did not hold that the speaker's subjective intent to intimidate or threaten
is required in order for a communication to constitute a true threat. Rather, the Court
determined that the statute at issue in Black was unconstitutional because the intent
element that was included in the statute was effectively eliminated by the statute's
provision rendering any burning of a cross on the property of another prima facie
evidence of an intent to intimidate. Id. at 366. "Because the . . . presumption obviated
the need to establish either subjective or objective intent, one simply cannot tell
whether the statute would have passed muster if it had included a reasonable person
standard for determining whether the cross burner had an intent to intimidate." Mark

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Strasser, Advocacy, True Threats, and the First Amendment, 38 Hastings Const. L.Q.
339, 377 (2011).

We have never expressly stated that a defendant's subjective intent to threaten
is not a necessary element of a true threat analysis. Cf. Floyd, 458 F.3d at 848 ("There
has been no First Amendment challenge in this case, and on that basis alone, Black is
distinguishable.") (footnote omitted). Nonetheless, we have adopted an objective test
for determining whether a communication is a true threat. This objective test, which
has been applied repeatedly since Black, does not consider the subjective intent of the
speaker. See, e.g., United States v. Beale, 620 F.3d 856, 865 (8th Cir. 2010) (defining
a "true threat" as "'a statement that a reasonable recipient would have interpreted as
a serious expression of an intent to harm or cause injury to another'" (quoting Pulaski
Cnty. Special Sch. Dist., 306 F.3d at 624)); United States v. Jongewaard, 567 F.3d
336, 339 n.2 (8th Cir. 2009) (same); Riehm v. Engelking, 538 F.3d 952, 963 (8th Cir.
2008) (same); cf. United States v. Armel, 585 F.3d 182, 185 (4th Cir. 2009) (applying
an objective test in a true threat analysis); Porter v. Ascension Parish Sch. Bd., 393
F.3d 608, 616-17 (5th Cir. 2004) ("[T]o lose the protection of the First Amendment
and be lawfully punished, the threat must be intentionally or knowingly communicated
to either the object of the threat or a third person."); United States v. Zavrel, 384 F.3d
130, 136 (3d Cir. 2004) (applying an objective test in a true threat analysis). But see
United States v. Parr, 545 F.3d 491, 500 (7th Cir. 2008) (declining to decide the issue
but noting that "[i]t is more likely . . . that an entirely objective definition [of a true
threat] is no longer tenable"); United States v. Cassel, 408 F.3d 622, 633 (9th Cir.
2005) ("[S]peech may be deemed unprotected by the First Amendment as a 'true
threat' only upon proof that the speaker subjectively intended the speech as a threat.").

The government need not prove that Mabie had a subjective intent to intimidate
or threaten in order to establish that his communications constituted true threats.
Rather, the government need only prove that a reasonable person would have found
that Mabie's communications conveyed an intent to cause harm or injury. Cf. United

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States v. White, No. 7:08-CR-00054, 2010 WL 438088, at *8 (W.D. Va. Feb. 4, 2010)
(slip copy) (stating that the public policy rationale outlined in Black for prohibiting
true threats supports this objective test because, "[i]f the prohibition on true threats is
meant to protect listeners from the 'fear of violence' and the corresponding 'disruption
that fear engenders,' then the subjective intent of the speaker can not [sic] be of
paramount importance" (quoting Black, 538 U.S. at 360)); New York ex rel. Spitzer
v. Cain, 418 F. Supp. 2d 457, 479 (S.D.N.Y. 2006) ("A standard for threats that
focused on the speaker's subjective intent to the exclusion of the effect of the
statement on the listener would be dangerously underinclusive with respect to the first
two rationales [in Black] for the exemption of threats from protected speech."). Thus,
18 U.S.C. § 876(c), which does not require a finding that the defendant actually
intended to threaten the recipient, is not unconstitutionally overbroad.

2. Vagueness Challenge
The statute is not void for vagueness either. The void-for-vagueness doctrine
protects persons by providing "fair notice" of a statute's applicability and by
preventing "arbitrary and discriminatory prosecutions" of a statute's enforcement.
Skilling v. United States, 130 S. Ct. 2896, 2933 (2010). "The vagueness doctrine
recognizes that '[a] statute which either forbids or requires the doing of an act in terms
so vague that men of common intelligence must necessarily guess at its meaning and
differ as to its application, violates the first essential of due process of law.'" United
States v. Birbragher, 603 F.3d 478, 484 (8th Cir. 2010) (quoting United States v.
Washam, 312 F.3d 926, 969 (8th Cir. 2002)). "'Void for vagueness simply means that
criminal responsibility should not attach where one could not reasonably understand
that his contemplated conduct is proscribed.'" Washam, 312 F.3d at 929 (quoting
United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 32–33 (1963)).

18 U.S.C. § 876(c) provides:

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 Whoever knowingly so deposits or causes to be delivered as aforesaid,
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.

(Emphasis added.) In Floyd, we recognized that 18 U.S.C. § 876(c) is "somewhat
ambiguous with regard to what the word 'knowingly' modifies." 458 F.3d at 848 n.3.
"Arguably, the 'knowingly' language could modify all the elements of the
statute–requiring that the sender not only 'knowingly' used the mails to send the letter,
but also that the sender 'knew' that the letter contained threatening language." Id.
(citing Liparota v. United States, 471 U.S. 419, 424–25 (1985)). Floyd did not address
a First Amendment challenge, however, and we have consistently interpreted the
statute as requiring only proof that the sender knowingly sent the
communications—not that the sender knowingly threatened the recipient or another.
See, e.g., id. at 847 ("The statute requires only that the sender intended to mail the
letter . . . not that the sender intended to threaten the recipient."); United States v.
Lincoln, 589 F.2d 379, 381 (8th Cir. 1979) (finding that the statute required proof of
two elements: "(1) that the defendant wrote a threatening letter and (2) that the
defendant knowingly caused the letter to be forwarded by the United States mail"); cf.
United States v. Rendelman, 641 F.3d 36, 46 (4th Cir. 2011) ("Section 876(c) merely
requires proof that the accused knowingly mailed the threatening communication, not
that he also intended to threaten the person of the recipient thereof."). But see United
States v. King, 122 F.3d 808, 811 (9th Cir. 1997) (finding that the statute requires a
specific intent to threaten).

Our prior interpretations of § 876(c) comport with a plain reading of the statute.
The word "knowingly" appears in the statute at the beginning of the text and is
separated from any language about the threatening nature of the communication. Also,
the phrase "knowingly so deposits or causes to be delivered as aforesaid" is followed

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by a comma, setting it off from the subsequent text. Finally, "any communication . .
. containing any threat" is covered by the provision. There is nothing in the language
of the statute to suggest that the threat contained must be one that the defendant
intended to make. For all of these reasons, we find that § 876(c) is not
unconstitutionally vague.

E. Obstruction-of-Justice Enhancement
Next, Mabie contends that the district court improperly assessed a two-point
enhancement for obstruction of justice. Mabie contends the district court erred by
finding that Mabie willfully gave false testimony at trial. "We review a district court's
factual findings underlying an obstruction of justice enhancement for clear error and
its construction and application of the guidelines de novo." United States v. Mendoza-
Gonzalez, 363 F.3d 788, 796 (8th Cir. 2004). "A defendant is subject to an
enhancement under U.S.S.G. § 3C1.1 if he testifies falsely under oath in regard to a
material matter and does so willfully rather than out of confusion or mistake." Id. "If
a defendant objects to an obstruction enhancement relying on perjury, the district
court must make findings that the defendant willfully gave false testimony concerning
material matters in the case." Id.

Mabie testified at trial that the four communications for which he was convicted
were not intended as threats; rather, Mabie said that he was trying to stop certain
crimes from occurring and "get things back on the right track." Mabie also testified
that Lieutenant Deeba had challenged him to a gunfight but that Mabie did not want
any part of it. Finally, he stated that he did not dislike Choi and that she shared his
views that the Franklin County prosecutors were corrupt. At sentencing, the district
court determined that Mabie testified falsely regarding his motives for making the
threatening communications, his conversations with Lieutenant Deeba concerning the
gunfight, and his relationship with Choi. According to the court, "[t]hose facts become
material because he is trying to mischaracterize the threats he made."

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 In light of "the district court's superior position from which to judge
credibility," United States v. Stulock, 308 F.3d 922, 926 (8th Cir. 2002), as well as
ample proof that Mabie made his communications for reasons other than those he
declared at trial, we cannot find that the district court clearly erred in assessing an
obstruction-of-justice enhancement on each of the four counts for which Mabie was
convicted. Cf. Floyd, 458 F.3d at 850 (affirming an obstruction-of-justice
enhancement because the district court found that defendant perjured herself when she
stated that she sent the communication for a reason other than to threaten the
recipient).

F. Reasonableness of the Sentence
Finally, Mabie contends that a Guidelines sentence of 88 months' imprisonment
is unreasonable in this case because the district court failed to consider that Mabie did
not have a violent criminal history, that he behaved extremely well at trial, that the
threats he made were mild and indirect, and that no one suffered physical harm as a
result of his conduct. We review the reasonableness of a defendant's sentence for an
abuse of discretion. United States v. Reynolds, 643 F.3d 1130, 1134 (8th Cir. 2011)
(citing Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Feemster, 572
F.3d 455, 461 (8th Cir. 2009) (en banc)). A sentence within a properly calculated
Guidelines range is presumptively reasonable on appeal. United States v. Borromeo,
657 F.3d 754, 756 (8th Cir. 2011).

The district court did not abuse its discretion in sentencing Mabie to a term of
88 months' imprisonment. The district court considered the entirety of Mabie's
criminal record, which includes two convictions for harassment to frighten or disturb
another person, an undated charge of harassment to frighten or disturb, and a
conviction for third-degree assault and first-degree trespassing. The district court also
made reference to Mabie's courtroom behavior in pronouncing the sentence: "[W]hile
Mr. Mabie is a highly intelligent individual," "there is something about this case that
[is] hard . . . to explain. . . . [I]t can be done in talking about the irrational approach he

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takes and the lack of willingness to move on and really focus on the harm done."
Mabie contends that the court erred by failing to consider his good behavior during
trial. The district court was mindful, however, that Mabie's good behavior during trial
may not have been entirely due to his desire to excel in deportment but perhaps also
due to the stun belt that he wore throughout the course of the trial. The district court
also considered the nature of Mabie's threatening communications and the resulting
harm that they inflicted:

[W]hile no physical harm is traceable to the offenses, the emotional harm
is very substantial in this case. I had an opportunity to see the various
victims testifying in this case, and their lives have been changed by—by
these threats. They made a real impact on me in terms of the emotional
toll, the clarity with which the various victims recalled all of the
incidents and how it impacted them. So while there has been no physical
harm caused, the emotional strain has been very, very substantial in this
case. So these are serious offenses . . . .

The district court took into consideration all of the relevant factors in sentencing and
imposed a sentence to reflect the seriousness of the offenses, to provide adequate
deterrence, to protect the public from further crimes, and to provide Mabie with
needed training and treatment. See 18 U.S.C. § 3553(a). The court did not abuse its
discretion by imposing a Guidelines sentence of 88 months' imprisonment.

III. Conclusion
Accordingly, we affirm the judgment of the district court.
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