United States of America v. Kim Rolene Hutterer

United States Court of Appeals
For the Eighth Circuit
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No. 12-1146
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kim Rolene Hutterer
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 15, 2012
Filed: February 19, 2013
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Before LOKEN, SMITH, and BENTON, Circuit Judges.
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SMITH, Circuit Judge.
Kim Rolene Hutterer pleaded guilty to making threatening interstate
communications, in violation of 18 U.S.C. § 875(c) ("Count 2"), and mailing
threatening communications, in violation of 18 U.S.C. § 876(c) ("Count 4"). The

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district court sentenced Hutterer to 180 months' imprisonment. Hutterer appeals her1
sentence, arguing that the district court abused its discretion by imposing a
substantively unreasonable sentence. We affirm.
I. Background
In 1991, Federal Bureau of Investigation Agent Dean Scheidler investigated
Hutterer in connection with threats to blow up a commercial airliner, and Hutterer
was subsequently arrested. During her pretrial detention, Hutterer carved "death to
Scheidler" on seating in her jail cell. Hutterer was convicted of providing false
information concerning a bomb on an airliner and sentenced to 30 months'
imprisonment. While serving that sentence, Hutterer assaulted and threatened to kill
Bureau of Prisons Officer Blaine Patterson. Upon her release from prison, Hutterer
began sending Officer Patterson personal letters to his work and also obtained his
home addresses and telephone numbers. On September 21, 2010, Hutterer called
Officer Patterson's work and threatened to kill him. In October 2010, she sent Officer2
Patterson a letter professing her love for him. She also threatened to bomb the facility
in which he worked.
While in state custody on an unrelated terroristic threats conviction in October
2010, and following her release from state custody in March 2011, Hutterer sent
sexually-explicit, threatening, and harassing letters, telephone messages, and text
messages to Agent Scheidler's work and home. Some of the letters included pictures
of a knife dripping with blood with the agent's name on it, and other letters described
in explicit detail how Hutterer planned to kill Agent Scheidler, sleep with him, and
commit other grotesque acts. Hutterer included some of Agent Scheidler's private,
confidential information in her harassing communications. She even carved Agent
The Honorable Paul A. Magnuson, United States District Judge for the1
District of Minnesota.
This conduct forms the basis of Count 2.2
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Scheidler's name in her arm with a staple. In one of the letters, Hutterer threatened
other officials, including Vice President of the United States Joe Biden. Hutterer
often included Agent Scheidler's family members in her threats, and she also
threatened to damage federal buildings. On March 29, 2011, Hutterer placed
threatening correspondence in the mail to Agent Scheidler's home.3
The government indicted Hutterer on four counts: making threats against the
Vice President of the United States on October 19, 2010, in violation of 18 U.S.C.
§ 871(a) ("Count 1"); making threatening interstate communications on September
21, 2010, in violation of 18 U.S.C. § 875(c) ("Count 2"); mailing threatening
communications on October 19, 2010, in violation of 18 U.S.C. § 876(c) ("Count 3");
and mailing threatening communications on March 29, 2011, in violation of 18
U.S.C. § 876(c) ("Count 4"). Following Hutterer's indictment, the district court
ordered that Hutterer "have no contact, directly or indirectly, with Special Agent
Scheidler, his family, Lieutenant Patterson[,] or any law enforcement officer."
Pursuant to a plea agreement, Hutterer pleaded guilty to Count 2 and Count 4,
and the government dismissed the remaining counts. The parties agreed that (1) the
base offense level applicable to each count was 24, see U.S.S.G. § 4B1.1(b)(E); (2)
the total offense level applicable to each count was 26 because the counts did not
group together but instead counted as two units, see U.S.S.G. §§ 3D1.2 and 3D1.4(a);
(3) the government would recommend a three-level reduction for acceptance of
responsibility contingent on, among other things, Hutterer "commit[ting] no further
acts inconsistent with acceptance of responsibility," see U.S.S.G. § 3E1.1; (4) the
criminal history category was VI based on Hutterer's qualification as a career
offender, see U.S.S.G. § 4B1.1(b); and (5) the Guidelines range was 92 to 115
months' imprisonment based on an adjusted offense level of 23 and a criminal history
category of VI.
This conduct forms the basis of Count 4.3
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After pleading guilty, Hutterer continued to write letters to Agent Scheidler,
his wife, and other law enforcement officers. The presentence investigation report
(PSR) calculated a total offense level of 27 after recommending (1) a two-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1 based on the letters
that Hutterer sent to Agent Scheidler and his family, (2) an "official victim"
enhancement under U.S.S.G. § 3A1.2(a) and (b) because Hutterer's victims were
government employees and Hutterer was motivated by their status as such, and (3) the
denial of an acceptance-of-responsibility reduction because Hutterer's obstructive
behavior was inconsistent with U.S.S.G. § 3E1.1. A total offense level of 27,
combined with a criminal history category of V, resulted in an advisory Guidelines
range of 120 to 150 months' imprisonment.
At sentencing, the government moved for an upward variance of 30 months.
Hutterer objected to the two-level enhancement for obstruction of justice, the denial
of acceptance of responsibility, and the "official victim" enhancement. The district
court adopted the PSR's finding that the advisory Guidelines range was 120 to 150
months' imprisonment based upon a total offense level of 27 and a criminal history
category of V. Prior to imposing the sentence, the district court heard Agent
Scheidler's testimony regarding the adverse effects of Hutterer's conduct upon his
family.
Thereafter, the district court granted the government's variance motion and
sentenced Hutterer to 180 months' imprisonment. In justifying its sentence, the
district court stressed that it considered the 18 U.S.C. § 3553(a) factors of just
punishment, deterrence, public safety, and the promotion of the law. The district court
highlighted Hutterer's long criminal history, her mental illness for which she refuses
to seek help, and the ongoing nature of Hutterer's threats. The district court also
considered that Hutterer had suffered abuse in the past. Summarizing the basis for its
upward variance, the district court stated that threats to law enforcement officers and
their families are "absolutely not tolerable under any circumstance and may not be
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permitted to exist within a peaceful society." The district court also found "that
aggravating circumstances exist that were not adequately considered by the
Sentencing Commission" and that Hutterer's criminal conduct was "escalating."
II. Discussion
On appeal, Hutterer argues that her 180-month sentence is substantively
unreasonable. Specifically, she asserts that (1) the obstruction-of-justice enhancement
should not apply because the letters she sent to the officers were intercepted, (2) the
"official victim" enhancement should not apply because her actions were based on her
personal attraction/repulsion to Agent Scheidler and Officer Patterson and not based
on their official status, (3) she should have received a downward adjustment for
acceptance of responsibility since she pleaded guilty, and (4) the court gave undue
consideration to the victims' law enforcement status and not enough to her mental
illness and her inability to carry out threats while incarcerated.
"'We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard . . . .'" United States v. Hull, 646 F.3d 583, 588 (8th Cir. 2011)
(quoting United States v. Vinton, 631 F.3d 476, 487 (8th Cir. 2011)). We first
consider procedural errors, "such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any deviation
from the Guidelines range." Gall v. United States, 552 U.S. 38, 51 (2007). We then
consider the substantive reasonableness of the sentence, where we "take into account
the totality of the circumstances, including the extent of any variance from the
Guidelines range." Id. "The fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to justify reversal
of the district court." Id. "'[I]t will be the unusual case when we reverse a district
court sentence—whether within, above, or below the applicable Guidelines range—as
substantively unreasonable.'" United States v. Feemster, 572 F.3d 455, 464 (8th Cir.
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2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir.
2008)).
A. Obstruction of Justice
Under U.S.S.G. § 3C1.1, a defendant who "willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice" may receive a two-
level increase in his offense level. We have held that an obstruction-of-justice
enhancement is warranted where the defendant "'attempted to obstruct or impede[ ]
the administration of justice'" with behavior that was "'threatening, intimidating, or
otherwise unlawfully influencing.'" United States v. Smith, 665 F.3d 951, 957 (8th
Cir. 2011) (alteration in original) (quoting U.S.S.G. § 3C1.1).
Here, we conclude that the district court properly imposed an obstruction-of-
justice enhancement under § 3C1.1. Scheidler's knowledge of Hutterer's conduct
made him a likely witness in future proceedings affecting Hutterer. In one instance,
Hutterer threatened Agent Scheidler in a handwritten letter to the FBI. Hutterer,
speaking of Scheidler, said:
I would slowly cut skin off his body. Making small cuts to slowly allow
the blood to drip out. I would cut his eyelids off. Break each of his
fingers. Cut his palms open. I would make small cuts on Dean's penis
and balls and watch the blood drip to the floor.
Such statements made against a potential witness could reasonably be concluded as
intended to obstruct or impede the administration of justice.
B. "Official Victim" Enhancement
According to U.S.S.G. § 3A1.2(a), a defendant may receive a three-level
increase in offense level if "the victim was (A) a government officer or employee; (B)
a former government officer or employee; or (C) a member of the immediate family
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of a person described in subdivision (A) or (B); and (2) the offense of conviction was
motivated by such status."
In the present case, we find that the district court properly imposed an "official
victim" enhancement under § 3A1.2(a) because Hutterer's conduct toward both Agent
Scheidler and Officer Patterson derived directly from their positions as government
officials.
C. Acceptance of Responsibility
A defendant who "clearly demonstrates acceptance of responsibility for his
offense" may receive a two-level decrease in offense level. U.S.S.G. § 3E1.1(a).
"Ordinarily, a defendant who obstructs justice is not entitled to the reduction for
acceptance of responsibility." Smith, 665 F.3d at 957. Only in "extraordinary cases"
will defendants found to have obstructed justice "be eligible for the acceptance of
responsibility reduction." Id. (quotation and citation omitted). This court has
identified a number of non-exclusive factors for the district courts to
consider in deciding whether a case is "extraordinary." These include
whether
the obstruction of justice was an isolated incident early in
the investigation or an on-going effort to obstruct the
prosecution[,] . . . whether [the defendant] voluntarily
terminated his obstructive conduct, or whether the conduct
was stopped by law enforcement[,] . . . [and] whether [the
defendant] admitted and recanted his obstructive conduct,
or whether he denied obstruction of justice at sentencing.
Id. at 957–58 (alterations in original) (quoting United States v. Honken, 184 F.3d 961,
968 (8th Cir. 1999)).
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We conclude that the district court did not err in denying Hutterer a sentencing
reduction for acceptance of responsibility. Hutterer's post-plea conduct, including
mailing threatening letters to Agent Scheidler, does not reflect an acceptance of
responsibility. As previously explained, the district court did not err in applying the
obstruction-of-justice enhancement. And Hutterer has not presented an extraordinary
case warranting a decrease in offense level based on acceptance of responsibility. See
Smith, 665 F.3d at 957–58.
D. Consideration of 18 U.S.C. § 3553(a) Factors
Hutterer contends that the district court gave undue consideration to the
victims' law enforcement status and not enough to her mental illness and her inability
to carry out threats while incarcerated.
Hutterer's PSR revealed a 30-year history of criminal conduct. She harassed
Agent Scheidler over an extended period of time and made graphic and violent
threats, which also targeted his family. She continued her behavior before sentencing
and showed no remorse afterward, demonstrating an intent to continue her
harassment. Based on our review of the record, we conclude that the district court
imposed a sentence that properly considered all relevant § 3553(a) factors. The
district court highlighted its consideration of the need for protection of the public,
adequate deterrence, and promotion for respect for the law, specifically noting that
these factors outweighed the mitigating effects of Hutterer's personal characteristics
(i.e., her mental illness). Furthermore, the district court properly explained its
sentence under Gall. Given the extent and persistence of Hutterer's conduct, the
district court did not abuse its discretion in varying upward and imposing a 180-
month sentence.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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