A. Guidelines Provisions
The starting point in sentencing is always the Sentencing
Guidelines. Section 2A6.1 provides a base offense level of 12 for
violations of 18 U.S.C. § 844(e). The Guidelines further provide
that "[i]f the offense involved any conduct evidencing an intent
to carry out such threat, increase by 6 levels." U.S.S.G. §
2A6.1(b)(1). If, however, "specific offense characteristic §
2A6.1(b)(1) does not apply, and the offense involved a single
instance evidencing little or no deliberation, decrease by 4
levels." Id. § 2A6.1(b)(2). To determine the proper final offense
level, the Court must decide whether either of the two special
criteria described in the Guidelines are present.
In the Presentence Investigation Report (PSR), the probation
officer concluded that Horton's offense level should be 6. The
probation officer reached this conclusion by granting a 4 level
reduction because the parties' plea agreement stated that the
offense evidenced little or no deliberation. The probation
officer also granted Horton a 2 level reduction for acceptance of
responsibility. U.S.S.G. § 3E1.1(a). Horton's Criminal History
Score was within Category III. According to the PSR, the sentence
range was 2 to 8 months.
B. Four Point Reduction for Little or No Deliberation
The Court reviewed the PSR and received a joint stipulation
from the Government and Horton regarding the relevant facts.
Based on the information provided, the Court concludes that the
4 level reduction pursuant to § 2A6.1(b)(2) is not appropriate in
this case. Although this case involves only a single instance of
threatening conduct, the Court finds that Horton's conduct
evidenced more than "little or no deliberation." Therefore,
Horton is not entitled to the 4 point reduction in offense level.
The plea agreement stated that the § 2A6.1(b)(2) reduction
should be granted. But as the parties acknowledge, the Court is
not bound by the terms of the plea agreement. See Fed.R.Crim.P.
11(e); U.S.S.G. § 6B1.1(b) (policy statement); United States v.
Sanchez-Estrada, 62 F.3d 981, 987 (7th Cir. 1995); see also
United States v. Jimenez-Otero, 898 F.2d 813 (1st Cir. 1990)
(affirming district court decision to enhance offense level by 6
because the defendant engaged in conduct evidencing intent to
carry out his threat, despite plea agreement stating that the 4
level reduction was appropriate). Additionally, paragraph 6 of
the plea agreement states that "the Court will not be bound by
any recommendation made by any party, and that the Court will be
free to impose whatever sentence it deems appropriate up to the
statutory maximum. . . ."
Evidence of more than little or no deliberation is abundant.
Horton's conduct took place over at least 39 minutes and may have
lasted for over 2 hours. Horton's threat followed closely the
tragic Oklahoma City bombing — which had occurred the day before
— and clearly took advantage of the Federal Government's
heightened fear of terrorist attacks. Horton's threat occurred in
an environment of heightened security in which it was certain to
be taken very seriously. The PSR reports that Horton has
previously pleaded guilty to two counts of assault arising out of
threatening conduct, making it clear that Horton knew the serious
nature of his conduct. Horton knew what he was doing and did it
intentionally and deliberately.
What little discussion of the 4 level reduction provided by
§ 2A6.1(b)(2) in other opinions indicates that even the smallest
amount of deliberation deprives the defendant of the reduction.
Recently the Ninth Circuit concluded that threats contained in
two letters a defendant wrote on the spur of the moment, while
intoxicated, were made with more than little or no deliberation.
United States v. Sanders, 41 F.3d 480 (9th Cir. 1994), cert.
denied, ___ U.S. ___, 115 S.Ct. 2010, 131 L.Ed.2d 1009 (1995).
There, Sanders sent documents containing racial and ethnic slurs,
death threats, and hateful caricatures to the local NAACP chapter
and to a Jewish congregation. Id. at 482. The sentencing judge
concluded that Sanders' conduct evidenced deliberation because:
[t]he contents of the writings themselves
demonstrate that some deliberation went into their
preparation. Moreover, [Sanders] selected two
distinct groups of victims, he selected them for
their race and religion, and he tailored the
contents of his letters to their race and religion.
[He] then obtained the victims' addresses, attached
proper postage, and deposited the two letters in
two different mail drop boxes. These actions show a
deliberate thought process rather than an impulsive
Id. at 485 (quoting Sentencing Memorandum at 7) (alterations in
original). The Ninth Circuit concluded that the district court's
conclusion was not clearly erroneous because, while Sanders'
statements clearly did not demonstrate intelligent thought, they
did show that he had put time and effort into the threats.
Specifically, the court noted that the threats contained
statements tailored to the victims that were "calculated to
frighten and upset two particular groups of victims and to imply
that they should take his threats seriously." Id. at 485.
In United States v. Fann, 41 F.3d 1218 (8th Cir. 1994), the
Eighth Circuit upheld a district court's refusal to grant the 4
level reduction under § 2A6.1(b)(2). The defendant had threatened
the life of the President. The district court rested it decision
not to reduce the offense level on the following facts: "Fann
communicated his threat on more than one occasion to different
people; he communicated the threats over the telephone, in
writing, in statements to the Secret Service, and in statements
to the press; and he added and subtracted detail as he issued his
various statements." Id. at 1219. The Eighth Circuit found that
this evidence was sufficient to sustain the district court's
refusal to grant the 4 level reduction.
In United States v. Bellrichard, 801 F. Supp. 263 (D.Minn.
1992), the defendant was convicted on five counts of mailing
threatening communications in violation of 18 U.S.C. § 876.
Bellrichard argued that he should receive a 4 level departure on
two of the counts because they involved single letters evidencing
little deliberation. Id. at 265. In response, the sentencing
"The defendant may have impulsively decided to write [the
letters] . . . but the process of obtaining an address, conveying
his thoughts onto paper, taking that paper to a mailbox, and
mailing the letter shows the deliberation that was involved. This
process is different than making a single oral threat on the spur
of the moment, or other conduct which might warrant the
reduction." Id. at 265-66.
These cases establish that more than little or no
deliberation exists if the defendant's threat was something other
than an off-the-cuff remark or a crime of opportunity. In this
case, Horton selected the target for his threat because of news
coverage and heightened security in response to the Oklahoma City
bombing. He delivered his threat on two occasions: in person to
the Springfield Mayor's office and over the telephone to the
United States Marshal's Office. Horton's threat did not occur in
the midst of an argument or a fight. Instead it was calculated to
cause maximum commotion. Horton's threat may have originated in
an impulsive exercise of poor judgment, but his actions in
carrying it out evidence more than the minimal deliberation that
this Court must find in order to grant the § 2A6.1(b)(2)
C. Upward Departure
1. Standard for Upward Departures
The sentencing court must impose a sentence within the
Guideline range "unless the court finds that there exists an
aggravating or mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described." 18 U.S.C. § 3553. To
upwardly depart from the prescribed guideline range, a sentencing
court must make three conclusions: (1) that proper grounds exist
for departure, (2) that the facts support a departure based on
those grounds, and (3) that the degree of departure is
reasonable. United States v. Ewers, 54 F.3d 419, 420 (7th Cir.
2. Horton's Conduct Warrants an Upward Departure
The plea agreement satisfies the first and second prongs of
the upward departure
inquiry — the parties agreed that an upward departure is
warranted pursuant to U.S.S.G. § 5K2.7, which provides that
disruption of a significant government function is proper grounds
for an upward departure unless governmental disruption is
inherent in the defendant's offense.*fn3
The facts confirm the parties' agreement. Horton pleaded
guilty to a violation of 18 U.S.C. § 844(e). That Section
prohibits threats to destroy by fire or explosive "any building,
vehicle, or other real or personal property." 18 U.S.C. § 844(e)
(emphasis added). Section 844(e) does not inherently involve
impairment of government functioning. The potential disruption
caused by threatening to destroy a government building is vastly
different than the potential disruption caused by threatening to
destroy minor items of private property. See U.S.S.G. § 2A6.1
Application Note (stating that the Guideline covers a wide
variety of conduct and that "[f]actors not incorporated into the
guideline may be considered by the court in determining whether
a departure from the guidelines is warranted"). The Court finds
that the Guideline does not adequately account for the degree to
which Horton's conduct impaired government functioning.
In addition to being warranted because the Sentencing
Commission did not consider impairment of government functioning
when it drafted § 2A6.1, an upward departure for disruption of a
government function is appropriate in Horton's case. Horton's
bomb threat came one day after the horrific bombing of the Alfred
P. Murrah Federal Building in Oklahoma City. Horton was
apparently motivated to make the threat because he was required
to show identification upon entering the Findley Federal
Building, a result of heightened security in the wake of the
Oklahoma City bombing. Playing on enhanced fears, Horton vented
his frustration by phoning in a bomb threat to the Findley
As a result of Horton's threat, the Findley Federal Building
was evacuated and closed for half a day. Fourteen federal
agencies were forced to close their offices, losing over 400
hours of work. Members of the public wishing access to any of
those agencies, including courts, law enforcement agencies, and
the postal service, were unable to enter the building until the
next day. The search for the nonexistent explosive device
needlessly occupied numerous members of federal, state, and local
law enforcement agencies, interfering with their ordinary work
and endangering the community as a whole.
While some government expense, in investigation, prosecution,
and punishment, is inherent in the operation of the criminal
justice system, and therefore taken into account in formulating
the guideline ranges, the disruption caused by Horton's conduct
far exceeds that which the Sentencing Commission could have
3. Degree of Departure
The parties disagree about the third prong of the upward
departure inquiry: the reasonableness of the degree of departure.
The Government seeks a departure equivalent to 3 offense levels.
Horton argues for a departure half that size, of only one and a
half levels. The Court finds that neither the Government's nor
Horton's recommended departures adequately deal with this case.
Based on the severity of Horton's conduct and its significant
impact on government functioning, the Court finds that an upward
departure equivalent to an 8 level increase in the offense level
To be reasonable in degree, an upward departure must be tied
to the structure of the Sentencing Guidelines. See United States
v. Archambault, 62 F.3d 995, 1002 (7th Cir. 1995); United States
929 F.2d 334, 337 (7th Cir. 1991). Initially, the Court notes that an 8
offense level departure yields an offense level within the range
provided by the Sentencing Guidelines. The offense level range
provided by § 2A6.1 is from 8 to 18. As the Sentencing Commission
noted, it was not possible to "include all potentially relevant
circumstances in the offense level." § 2A6.1, Application Note.
This Court has determined that § 2A6.1 does not adequately
account for potential disruption of a government function. In
keeping with the spirit of the Application Note, this Court has
enhanced Horton's offense level to 18, the upper limit of the §
A departure of 6 offense levels mirrors the only enhancement
specifically listed in § 2A6.1. The additional 2 level departure
in this case is not just for good measure. Instead, the
additional 2 point enhancement parallels enhancements for conduct
closely related to interference with government functioning.
Several provisions of the Sentencing Guidelines apply by
analogy to suggest that an additional 2 level departure is
appropriate. First, § 3A1.1 provides for a 2 level increase in
the offense level if the "defendant knew or should have known
that a victim of the offense was unusually vulnerable due to age,
physical or mental condition, or that a victim was otherwise
particularly susceptible to the criminal conduct." Horton made
his bomb threat on the day after the infamous Oklahoma City
bombing. It is apparent from the record that the threat was
motivated, at least in part, by enhanced security at the Findley
Federal Building. In a heightened security environment, in the
wake of a massive tragedy, the federal government itself can be
considered a victim "otherwise particularly susceptible" to harm
from false bomb threats.
Second, § 3C1.1 provides a 2 level increase for obstructing
or impeding the administration of justice. Horton's bomb threat
directly interfered with the operation of the courts and law
enforcement agencies housed in the Findley Federal Building.
While the count of the indictment charging obstruction of justice
in this case has been dismissed by the Government, Horton's
conduct obstructed justice in all matters pending before the
courts housed in the Findley Federal Building. Additionally,
Horton's threat unduly burdened the law enforcement officers who
searched and secured the building, and endangered the community
by tying up large numbers of law enforcement officers.
Finally, § 3A1.2 provides for a 3 level increase in the
offense level if the "victim was a government officer or
employee." While Horton's threat did not have victims per se, it
impaired the operation of the government in the same way a threat
on the life of a particular government employee hinders that
employee in the performance of his or her job.
Upwardly departing an amount equivalent to 8 offense levels
compensates for the Sentencing Commission's lack of consideration
for the possibility of severe interference with government
functioning as a result of false bomb threats. Six levels of the
8 level departure directly parallel the structure of the
applicable guideline. The additional 2 level departure
corresponds to either the vulnerable victim, official victim, or
obstruction of justice enhancements. Those provisions are
appropriate hallmarks for judging the severity of a threat to
destroy a government building and the disruption of government
functioning that threat caused.
The Court finds that Horton's conduct warrants a firm
response. The applicable provision of the Sentencing Guidelines,
even when properly applied, does not adequately account for the
seriousness of Horton's crime. The Court must upwardly depart
from the applicable guideline range to impose a sentence that
fits the crime.
One final note. At the time Horton entered his guilty plea,
this Court specifically admonished him that sentencing was the
Court's job and that the Court would listen to the
recommendations by way of sentencing of counsel for both the
Government and Horton, but that the Court would not be bound by
their recommendations, even if they were joint or agreed
recommendations. Horton acknowledged in open court that he
understood that admonition. As already noted,
that admonition was also set forth in the written plea agreement
which Horton read, discussed with his counsel, and thereafter
The Court is disturbed with the apparent assumption by
counsel that the Court is bound to impose a particular sentence
simply because the parties have agreed to a certain sentence
range and have recommended it to the Court. If this is the case,
counsel are put on notice that they should dispel themselves of
such a baseless misapprehension of the law of criminal procedure.
United States v. Eppinger, 49 F.3d 1244, 1250-51 (7th Cir. 1995)
(holding that a plea agreement such as the one at issue in this
case was not binding on the judge even when the parties had
erroneously calculated the possible sentence at the time of
entering the agreement); United States v. Bennett, 990 F.2d 998
(7th Cir. 1993) (a case from this Court in which the Seventh
Circuit upheld this Court's decision not to enforce stipulations
in the plea agreement). See generally Fed.R.Crim.P. 11(e). But
see Fed.R.Crim.P. 11(e)(1)(C) (describing a type of plea
agreement in which the parties agree that "a specific sentence is
the appropriate disposition of the case").
The plea agreement is a contract between the government and
the defendant. The Court is not a party to that contract and is
not bound by its terms. Both parties here have lived up to the
terms of their contract and made a recommendation in accord with
its terms. The Court, however, does not agree with either the
Government or Horton in this regard and executes its legal
sentencing responsibility according to its interpretation of the
statutes, Sentencing Guidelines, and controlling decisional
Horton has an offense level of 10 and a criminal history
within category III, yielding a sentencing range of 10 to 16
However, for the reasons discussed herein, the Court upwardly
departs from the guidelines by 8 offense levels and determines
that the range should be 33 to 41 months.
Allowing for a departure, Horton is sentenced to 40 months
imprisonment. Upon release Horton shall serve a total of 3 years