United States of America v. Charles H. Hudspeth

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0112P (6th Cir.)
File Name: 00a0112p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
C HARLES H. HUDSPETH ,
Defendant-Appellant.
;>

1
No. 98-4515
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 97-00086—Herman J. Weber, District Judge.
Submitted: February 4, 2000
Decided and Filed: March 30, 2000
Before: WELLFORD, BATCHELDER, and
DAUGHTREY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Richard W. Smith-Monahan, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, SOUTHERN DISTRICT
OF OHIO, Cincinnati, Ohio, for Appellant. Terry Lehmann,
ASSISTANT UNITED STATES ATTORNEY, Cincinnati,
Ohio, for Appellee.

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2 United States v. Hudspeth No. 98-4515
DAUGHTREY, J., delivered the opinion of the court, in
which BATCHELDER, J., joined. WELLFORD, J. (pp. 6-7),
delivered a separate concurring opinion.
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OPINION
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MARTHA CRAIG DAUGHTREY, Circuit Judge. The
defendant, Charles Howard Hudspeth, appeals his sentence of
21 months’ incarceration and three years’ supervised release,
imposed as a result of his conviction for mailing threatening
communications in violation of 18 U.S.C. § 876 (1994).
Hudspeth alleges that the district court impermissibly
enhanced his sentence pursuant to United States Sentencing
Guideline § 3A1.2(a), which mandates an increase of three
sentencing levels if the victim of federal criminal conduct was
“a government officer or employee.” We find no error and,
for the reasons set out below, we affirm the district court’s
judgment.
PROCEDURAL AND FACTUAL BACKGROUND
In 1997, Charles Hudspeth was indicted on two counts of
mailing threatening communications to Joseph Deters, a
prosecuting attorney for Hamilton County, Ohio, in part for
Deters’s presumed participation in Hudspeth’s prosecution on
state criminal charges. As part of a plea agreement with the
government, Hudspeth pleaded guilty to one count of the
indictment. The district court sentenced Hudspeth to 21
months’ incarceration in federal prison, to be served
consecutively with Hudspeth’s ongoing state prison sentence
and to be followed by a three-year term of supervised release.
The court enhanced Hudspeth’s sentence by three levels
pursuant to § 3A1.2(a) of the sentencing guidelines, entitled
“Official Victim,” because Joseph Deters was “a government
official of Hamilton County.” On appeal, Hudspeth claims
that the term “government officer or employee” in § 3A1.2(a)
refers only to federal employees, not to state or local
No. 98-4515 United States v. Hudspeth 7
States v. Stanley, 24 F.3d 1314 (11th Cir. 1994), cited by the
government in its brief, all involved law enforcement officials
and did not involve the guideline in question. United States
v. Muhammed, 948 F.2d 1449 (6th Cir. 1991), involved the
former version of § 3A1.2, and the defendant assaulted a law
employment official in the course of attempted bank robbery
of a federally insured bank in that case. It is not pertinent to
the circumstances of this case, in my view.
Strangely, neither the statute under which defendant was
convicted nor the indictment itself presented under 18 U.S.C.
§ 876 makes mention of the threat being caused, motivated,
or engendered by reason of the victim’s official status. The
applicable part of the statute refers to a “threat” addressed to
“any other person to injure the person” through the use of the
mail. The indictment tracks the statute and makes no mention
of the language contained in guideline § 3A1.2, which refers
to the threat’s being “motivated by such [official] status.”
Under the circumstances, it is with trepidation and some
uncertainty that I join the majority opinion.

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6 United States v. Hudspeth No. 98-4515
1Before the amendment, I could see more reason for enhancement
when the threatened party was a “law enforcement or corrections officer”
of a state agency.
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CONCURRENCE
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HARRY W. WELLFORD, Circuit Judge, concurring. I
reluctantly concur in my colleague’s opinion in this case.
Were I writing on a clean slate, my view would be contrary to
that of the majority. It seems to me that the guideline in
question, § 3A1.2(a), goes far beyond the import of 18 U.S.C.
§ 1114, which deals with “protection of officers and
employees of the United States.” (Emphasis added.) Why the
federal guidelines should have special concern about threats
to local or county officials and employees and enhance
federal penalties by reason of such factor escapes me,
particularly in the absence of specific language that a
“government officer or employee” includes a non-federal
government official or employee.1 Should the federal
sentencing guidelines bring about a particular enhancement to
a federal sentence for threats to a municipal secretary or a
sanitation worker or his or her immediate family? I think not
as a matter of logic and federalism.
The Stewart case, cited in support by the majority, involved
threats made to an Arkansas Department of Corrections
official in a federal courthouse. One can see a federal
connection in such a case with 18 U.S.C. § 1114. United
States v. Aman, 31 F.3d 550, 536 (7th Cir. 1994), does
describe the 1992 amendment to the guideline in question as
“greatly” expanding those who could be an “official victim”
and cause a federal sentence enhancement. It does not appear,
however, that the defendant in Aman made the direct
challenge made by Hudspeth in this case.
United States v. Garcia, 34 F.3d 6 (1st Cir. 1994); United
States v. Alexander, 48 F.3d 1477 (9th Cir. 1995), and United
No. 98-4515 United States v. Hudspeth 3
employees, and thus that his conduct in mailing threatening
correspondence to Deters was not covered by this provision.
DISCUSSION
Section 3A1.2(a) states “If . . . the victim was a government
officer or employee; a former government officer or
employee; or a member of the immediate family of any of the
above, and the offense of conviction was motivated by such
status . . . increase by 3 levels.” The question of whether
§ 3A1.2(a), one of a number of guidelines provisions
requiring victim-related adjustments to federal sentences,
applies to cases where the victim is a state or local employee
is apparently one of first impression in this circuit, although
other federal appeals courts have held that the provision does
cover such cases. See United States v. Stewart, 20 F.3d 911,
918 (8th Cir. 1994); cf. United States v. Aman, 31 F.3d 550,
556 (7th Cir. 1994). Based on our de novo review of the
district court’s sentencing order, see United States v. Talley,
164 F.3d 989, 1003 (6th Cir.), cert. denied, 119 S. Ct. 1793
(1999), we see little ambiguity in applying the plain language
of the provision to these facts: Joseph Deters was a county
government employee, and Hudspeth’s admitted criminal
conduct was motivated by Deters’s status as “a government
officer or employee.” Moreover, we agree with the Eighth
Circuit that, as a matter of policy, there is “absolutely no basis
for limiting the guideline,” and whatever deterrent effect may
be presumed from its promulgation, in this manner. See
Stewart, 20 F.3d at 918.
Hudspeth argues that, under the rule of lenity, we should
construe this purportedly ambiguous guidelines provision in
his favor. Although we do apply the rule of lenity to matters
relating to the sentencing guidelines, see United States v.
Sanders, 162 F.3d 396, 402 (6th Cir. 1998), and, indeed, have
not hesitated in the past to apply the rule to decisions
regarding criminal sanctions, see United States v. Morton, 17
F.3d 911, 915 (6th Cir. 1994), the rule of lenity is generally
inapplicable unless, “after a court has ‘seize[d] [on] every
thing from which aid can be derived,’ it is still left with an

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4 United States v. Hudspeth No. 98-4515
ambigu[ity].” Chapman v. United States, 500 U.S. 453, 463
(1991) (quoting United States v. Bass, 404 U.S.336, 347
(1971)).
We believe both that the meaning of § 3A1.2(a) is clear and
that the history of the provision affirms our conclusion that
conduct motivated by the work of state and local employees,
or by their status as employees, is covered by this guideline.
Section 3A1.2(a) was last amended in 1992; pre-amendment,
it stated:
If . . . the victim was a law enforcement or corrections
officer; a former law enforcement or corrections officer;
an officer or employee included in 18 U.S.C. § 1114; a
former officer or employee included in 18 U.S.C. § 1114;
or a member of the immediate family of any of the above,
and the offense of conviction was motivated by such
status . . . increase by 3 levels.
United States Sentencing Guidelines Manual § 3A1.2(a)
(1991). The version of § 1114 in effect before 1992 made
killing any one of a number of designated federal officers a
federal crime. See 18 U.S.C. § 1114 (1994). It included
among those officers specially protected federal judges,
United States Attorneys and Assistant Attorneys, United
States marshals, FBI agents, other Department of Justice
employees, Postal Service agents, and other employees of
various federal agencies. See id. Hudspeth argues that
§ 1114 criminalized only the killing of these officers “on
account of the performance of [their] official duties,” and not
because of their “official position,” and thus that § 3A1.2(a)
was amended to expand protection only to federal employees
from retaliatory conduct similarly based on status, not to
expand protection to state and local employees. We disagree
with Hudspeth’s parsing of the language of the version of
§ 1114 in effect in 1992, which has since been amended to
more broadly prohibit killing “any officer or employee of the
United States.” We also disagree with his argument that, in
this context, “performance of official duties” may be
meaningfully distinguished from “official position.” Nothing
No. 98-4515 United States v. Hudspeth 5
else in the structure of the guidelines or the history of their
amendments supports Hudspeth’s position, and his “mere
assertion of an alternative interpretation of a sentencing
guideline is not enough to bring the rule [of lenity] into play.”
United States v. Tagore, 158 F.3d 1124, 1128 n.3 (10th Cir.
1998).
Although we recognize that, according to the pre-sentence
report recommending enhancement, the target of the
threatening communications in this case apparently suffered
little or no injury from the receipt of the threats, we conclude
that application of § 3A1.2(a) depends on the victim’s status,
not on whether he or she suffered harm. We hold that federal
criminal sentences may be enhanced pursuant to § 3A1.2(a)
if the underlying conduct was motivated by the victim’s status
as a state or local government employee, and we therefore
AFFIRM the judgment of the district court.

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