United States of America, Plaintiff-appellee, v. Harry Veltman, Iii, Defendant-appellant, 993 F.2d 887 (9th Cir. 1993)

MEMORANDUM^*** 

The district court was correct in not grouping the counts on which Veltman was convicted. Counts are grouped only when they "involv [e] substantially the same harm." U.S.S.G. § 3D1.2. Receiving obscene or threatening letters on several occasions is more offensive or frightening than receiving them only once. Here, each new letter constituted a new harm, even though all the letters involved the same victim and were part of the same scheme. Cf. U.S.S.G. § 3D1.2 app. note 4 example (5).

The district court also didn't clearly err in finding Veltman hadn't accepted responsibility for his behavior. Veltman expressed regret about his conduct, see, e.g., G.E.R. 117, but he also denied it was criminal, see, e.g., G.E.R. 116. The district court's judgment about a defendant's acceptance of responsibility "is entitled to great deference on review," U.S.S.G. § 3E1.1 app. note 5, and we see no reason to overturn it.

Finally, the district court didn't err in departing upward for more than minimal planning. A district court may depart if it finds an aggravating circumstance that wasn't adequately considered by the Sentencing Commission. United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir. 1991) (en banc); U.S.S.G. § 5K2.0. The presence of more than minimal planning is indeed an aggravating circumstance; the more deliberate and premeditated the execution of the crime, the more culpable and dangerous we consider the offender to be. See, e.g., U.S.S.G. § 2A6.1(b) (2). And though the Commission considered the possibility that some threatening communications may be less deliberate than the typical one, see id., it didn't consider the possibility of threatening communications that are substantially more deliberate than the norm. The "extraordinary steps and ... extraordinary lengths," RT 6/1/92 at 61, Veltman went to in carrying out his scheme--such as his willingness to fly to Colorado just to deliver his letters--bespeak an unusual level of premeditation and commitment to his criminal enterprise. They indeed constitute more planning than is normally involved in committing the offense, see U.S.S.G. § 1B1.1 app. note 1(f), and a 2-level departure for this was well within the bounds of reason. See Lira-Barraza, 941 F.2d at 751.¹ 

AFFIRMED.