902 F. 2d 1580 - United States v. Herman

MEMORANDUM*

Zachary Herman appeals his conviction and sentence for threatening to use explosives to blow up Nellis Air Force Base. Herman was convicted for making the statement, "at 8:00 in the morning I'll crash the gate and I'll have enough explosives on me to blow up the Goddamn base," to a base employee. He argues on appeal that the trial court failed to instruct the jury on the proper level of intent for the crime. He also argues that the court failed to deduct points from his sentencing level as mandated by the federal sentencing guidelines. We find that Herman's conviction is valid. However, we remand the case to the trial court for resentencing with the instruction that the court make findings on the record if it chooses not to deduct the challenged points from appellant's sentencing level.

A. Jury Instruction.

Whether a jury instruction misstated elements of a statutory crime is a question of law that we review de novo. United States v. Spillone, 879 F.2d 514, 525 (9th Cir.1989). A district court's formulation of jury instructions is reviewed for abuse of discretion. United States v. Linn, 880 F.2d 209, 217 (9th Cir.1989).

Herman was convicted of violating 18 U.S.C. Sec. 844(e), threatening to destroy property by use of explosives. His argument on appeal appears to be twofold: (1) the court erred in not instructing the jury that it was required to find that defendant intended to actually carry out his threat; and (2) the court erred in not instructing the jury that it was required to find that defendant intended his statement to be a threat. We find that both arguments lack merit.

We have previously held that the government need not prove intent to actually destroy property in order to establish the elements of 18 U.S.C. 844(e). United States v. Nusz, 462 F.2d 617, 618 (9th Cir.1972). Herman argues that since this case did not involve a threat against the President of the United States, the government must meet the higher standard of intent to carry out the threat. To support this claim, appellant cites a statement in Roy v. United States, 416 F.2d 874, 877 (9th Cir.1969), that threats to the President are "qualitatively different" than other types of threats. The court in Roy found that because a threat against the President is different from other types of threats, the government need only prove intent to make a threat and not intent to carry out the threat. Id. at 877-878. Appellant claims that implicit in this holding is the conclusion that the government must prove intent to carry out the threat in cases which do not involve threats against the President.

Appellant also argues that there is another distinction between threats against the President and threats against others in the manner in which the level of intent is evaluated. The test for threats against the President is partially subjective and partially objective: Would a reasonable person foresee that the communication would be perceived as a threat? Roy, 416 F.2d at 877-878. Herman argues that, in contrast, the standard for threats to use explosives should be purely subjective.

We specifically rejected these distinctions in Nusz when we applied the same level of intent for threats against the President to threats to use explosives under Sec. 844(e). 462 F.2d at 618. The Nusz court decided not to apply "a different rule to prosecutions under this statute [Sec. 844(e) ]." Id. In keeping with the Nusz holding, we find that there is no distinction in intent between threats against the President and threats in violation of Sec. 844(e).

We find that the trial court did not err in fashioning its jury instructions on the requisite level of intent for a violation of 18 U.S.C. 844(e). Therefore, we affirm Herman's conviction.

B. Application of the Sentencing Guidelines.

The district court sentenced Herman to a sentence corresponding to a base offense level of 12 pursuant to Sec. 2A6.2 of the United States Sentencing Commission, Guidelines Manual. That section, entitled "Threatening Communication," states:

(a) Base Offense Level: 12

(b) Specific Offense Characteristics

(1) If the defendant engaged in any conduct evidencing an intent to carry out such threat, increase by 6 levels.

(2) If specific offense characteristic Sec. 2A6.1(b)(1) does not apply, and the defendant's conduct involved a single instance evidencing little or no deliberation, decrease by 4 levels.

The trial court stated on the record its rationale for not increasing the offense level by 6 points pursuant to Sec. 2A6.1(b)(1). The court did not state its reasons for not decreasing the offense level 4 points, following Sec. 2A6.1(b)(2), although Herman's attorney raised the issue at sentencing. Herman appeals his sentence claiming that the district court should have decreased his offense level by 4 points.

The trial court must make findings relating to sentencing on the record, particularly findings on controverted matters. 18 U.S.C. Sec. 3553(c); Fed.R.Crim.P. 32(c)(2)(D). In this case, the 4 point decrease is mandated by the sentencing guidelines if the requisite facts (single instance of conduct, little or no deliberation) are established. We are severely constrained in our analysis of Herman's claim without such findings on the record.

Therefore, we remand the case to the district court for resentencing with the direction that the court make findings on the record with regard to challenged, mandatory departures.

Conclusion.

The conviction is AFFIRMED; The sentence is VACATED and the case REMANDED for resentencing.