Unpublished Disposition, 912 F.2d 470 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 912 F.2d 470 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.John CONRY, Defendant-Appellant.

No. 89-30352.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 10, 1990.* Decided Aug. 23, 1990.

Before RONEY,**  FARRIS and FERNANDEZ, Circuit Judges.


MEMORANDUM*** 

John Conry ("Conry") appeals his conviction on one count of mailing a threatening communication. 18 U.S.C. § 876. Conry argues that there was insufficient evidence to show that he specifically intended to threaten the recipient of his letter. Conry also appeals his sentence. Conry argues that the district court should have reduced his offense level by two points because he had accepted responsibility for his actions. We affirm.

BACKGROUND FACTS

On April 16, 1989, Conry mailed a letter to Secret Service Agent Donald C. L'Huillier ("L'Huillier"). In the letter, Conry stated that he would kill L'Huillier if L'Huillier ever came to Conry's house without a search warrant. L'Huillier had previously been involved in a search of Conry's home when Conry had lived in Alaska. In response to Conry's threats in the letter, L'Huillier altered the manner in which he entered and left his office building. He would use the freight elevators rather than use the regular passenger elevators.

The Anchorage branch of the Secret Service requested that the Service investigate the letter, so an agent went to Conry's current home in California to interview him about the letter. During the interview Conry confirmed that he had written and mailed the letter to L'Huillier. Conry repeated that he was still upset with L'Huillier and would kill him if the he ever tried to enter Conry's home without a warrant.

Conry was indicted in Anchorage on one count of mailing a threatening letter. After he was indicted, Conry wrote another letter to L'Huillier in which he apologized for his previous letter. Conry stated that he would not hurt L'Huillier. Conry was convicted and the district court sentenced him to a term of eighteen months incarceration followed by a three-year term of supervised release. The district court reduced Conry's offense level by two points on the ground that Conry was entitled to a downward departure because his mental capacity was diminished at the time that he committed his crime. The district court refused to reduce Conry's offense level by two points for acceptance of responsibility.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

We will uphold a jury's verdict if, based on the record as a whole, any rational juror could have concluded beyond a reasonable doubt that the defendant was guilty. United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988). We review for clear error a district court's factual finding that a defendant had not accepted responsibility for his criminal conduct. United States v. Richison, 901 F.2d 778, 779 (9th Cir. 1990).

DISCUSSION

A. Sufficiency of the Evidence.

Conry was convicted under 18 U.S.C. § 876 (using the mail to send a threatening letter). We have stated that section 876 requires the government to show that the defendant specifically intended to threaten the recipient of the letter. United States v. Twine, 853 F.2d 676, 680 (9th Cir. 1988). However, the government need not show that the defendant was actually capable of carrying out the threat. United States v. Davis, 876 F.2d 71, 73 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 188, 107 L. Ed. 2d 143 (1989). The government need only show that the defendant wrote a letter that contained a threat to injure a person and that the defendant knowingly deposited the letter in the mails. Id. (citing United States v. Sirhan, 504 F.2d 818, 819 (9th Cir. 1974) (per curiam)).

Given the evidence, it was reasonable for the jury to conclude that when Conry wrote the letter, he specifically intended to threaten L'Huillier. Conry contends that he did not intend to threaten L'Huillier and that the letter only expressed the fact that he was frightened of L'Huillier. We are unpersuaded by Conry's argument given the fact that he stated in his letter that he would kill L'Huillier and repeated that threat when interviewed by the Secret Service. There was sufficient evidence on which to convict Conry of violating 18 U.S.C. § 876.

B. Acceptance of Responsibility.

Section 3E1.1 of the Sentencing Guidelines ("Guidelines") permits a district court to reduce a defendant's offense level by two points if the defendant has accepted responsibility for his actions. U.S.S.G. Sec. 3E1.1(a). Conry argues that he presented sufficient evidence to show that he had accepted responsibility for his criminal conduct. He points to the fact that he willingly discussed his actions with the Secret Service agent who came to interview him. Conry also notes that he voluntarily mailed L'Huillier a letter of apology. Furthermore, he expressed his remorse at the sentencing hearing.

The district court indicated that it would not reduce Conry's offense level by two points for acceptance of responsibility because it believed that Conry would start writing threatening letters once he was released from supervision.1  The court did recognize that Conry had taken various actions to show his remorse. However, the court did not believe that any of those actions established that Conry would not again write threatening letters.

The government argues that the district court refused to find that Conry has accepted responsibility because the court found that Conry had not withdrawn from his criminal activity. The Guidelines indicate that when a court decides whether a defendant has accepted responsibility, the court may consider the fact that the defendant did (or did not) withdraw from the criminal activity. U.S.S.G. Sec. 3E1.1, App. Notes 1(a)-(e). If a defendant does not withdraw from the criminal activity, then the court may justly decide that the defendant has not accepted responsibility. See United States v. Scroggins, 880 F.2d 1204, 1215-16 (11th Cir. 1989) (no acceptance of responsibility when defendant continued to use drugs after arrest), cert. denied, --- U.S. ----, 110 S. Ct. 1816, 108 L. Ed. 2d 946 (1990).

Here, the district court considered its experience with Conry and all of the evidence before it. The court was satisfied that Conry had not accepted responsibility in the usual sense. Because of Conry's mental illness, he was unable to, and would not, withdraw from his particular form of criminal activity. We give a great deal of deference to a district court's findings regarding acceptance of responsibility and do not generally disturb those findings on appeal. See U.S.S.G. Sec. 3E1.1, App. Note 5.

Furthermore, it was Conry's mental condition that induced the court to deny him the adjustment for acceptance of responsibility. The same condition induced the court to grant him a two point downward adjustment in offense level. The court stated that Conry was entitled to a two point reduction in his offense level because he was not really able to properly control himself. The evidence on the acceptance and mental condition issues was the same, and the district court's paired determinations were logically consistent. The court placed Conry in the same position he would have been in had the court awarded him a two-point reduction for acceptance of responsibility, a reduction it would undoubtedly have given him were it not for his mental condition. We will not disturb that decision. Cf. United States v. Vizcarra-Angulo, No. 89-50397, slip op. 5401 (9th Cir. May 29, 1990) (extent of downward departure may not be challenged); United States v. Morales, 898 F.2d 99, 101 (9th Cir. 1990) (appellate court will not review district court's discretionary decision not to depart downward); United States v. Turner, 881 F.2d 684, 688 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 199. 107 L. Ed. 2d 153 (1989) (appellate court does not review departure where ranges overlap, since there is no prejudice).

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

Honorable Paul H. Roney, Senior Circuit Judge, United States Court of Appeals for the Eleventh Circuit, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

It seems that Conry has a behavioral disorder that makes him impulsively write letters. Once he is off probation and the impulse strikes, he is not always able to control that impulse

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