United States v. Tessmer, No. 11-1605 (8th Cir. 2011)
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Defendant was convicted of mailing a threatening communication and the district court sentenced him as a career offender under U.S.S.G. 4B1.1 on the basis that mailing a threatening communication was a crime of violence. Defendant timely appealed. The court affirmed and held that it had previously determined pursuant to prior precedent that the offense of mailing a threatening communication was a crime of violence.
Court Description: Criminal case - Sentencing. District court did not err in finding defendant was a career offender under Guidelines Sec. 4B1.1 as his conviction for mailing a threatening communication qualified as a crime of violence.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 11-1605 ___________ United States of America, Appellee, v. Jonathon Tessmer, Appellant. * * * * Appeal from the United States * District Court for the * Eastern District of Missouri. * * [PUBLISHED] * ___________ Submitted: September 20, 2011 Filed: October 21, 2011 ___________ Before RILEY, Chief Judge, COLLOTON and GRUENDER, Circuit Judges. ___________ PER CURIAM. Jonathon Tessmer was convicted of mailing a threatening communication in violation of 18 U.S.C. § 876(c). The district court1 concluded that Tessmer qualified as a career offender under U.S.S.G. § 4B1.1 on the basis that mailing a threatening communication is a crime of violence, and it imposed a 46-month sentence. Tessmer timely appeals, contending that the career offender designation was in error. He 1 The Honorable Rodney W. Sippel, United States District Judge for the Eastern District of Missouri. argues that the offense of mailing a threatening communication is not a crime of violence because it requires neither intent nor means to carry out the threat. This Court reviews de novo a district court s determination that a conviction constitutes a crime of violence under the sentencing guidelines. United States v. Craig, 630 F.3d 717, 723 (8th Cir. 2011). A crime of violence is defined as any offense under federal or state law that is punishable by imprisonment for a term exceeding one year and (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) is a burglary of a dwelling, an arson, or an extortion; involves the use of explosives; or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a). We have previously determined that the offense of mailing a threatening communication in violation of 18 U.S.C. § 876(c) is a crime of violence. United States v. Left Hand Bull, 901 F.2d 647, 649 (8th Cir. 1990). To be convicted of mailing a threatening communication, the defendant must knowingly deposit or cause to be delivered a communication 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. 18 U.S.C. § 876(c). In Left Hand Bull, we held that mailing a threatening communication is categorically a crime of violence because [a]n essential element of § 876(c) is that the communication convey a threat to injure the person of the addressee or of another, and that element falls squarely within the definition of a crime of violence. 901 F.2d at 649 (emphasis added); see also United States v. Bellrichard, 62 F.3d 1046, 1050 (8th Cir. 1995) (upholding § 876(c) against a First Amendment challenge because it requires direct threats of force . . . toward other persons ). Thus, our precedent establishes that mailing a threatening communication in violation of 18 U.S.C. § 876(c) is categorically a crime of violence because it has as an element the threatened use of physical force against the person of another. -2- Tessmer contends that Left Hand Bull is no longer good law after Begay v. United States, 553 U.S. 137 (2008). However, Begay analyzed solely the analogous residual clause of 18 U.S.C. § 924(e)(2)(B); that is, whether a crime presents a serious potential risk of physical injury to another that is roughly similar in kind and degree of risk to burglary, arson, extortion, and offenses involving the use of explosives. See Begay, 553 U.S. at 143. In contrast, Left Hand Bull determined that § 876(c) constituted a crime of violence under the separate has as an element the . . . threatened use of physical force clause of U.S.S.G. § 4B1.2(a)(1), and not the residual clause of § 4B1.2(a)(2). Therefore, Begay does not affect the holding of Left Hand Bull. For the foregoing reasons, we affirm. ______________________________ -3-
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