United States v. Bryan Boneshirt

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1605
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Jonathon Tessmer, *
* [PUBLISHED]
Appellant. *
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Submitted: September 20, 2011
Filed: October 21, 2011
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Before RILEY, Chief Judge, COLLOTON and GRUENDER, Circuit Judges.
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PER CURIAM.
Jonathon Tessmer was convicted of mailing a threatening communication in
violation of 18 U.S.C. § 876(c). The district court concluded that Tessmer qualified1
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
The Honorable Rodney W. Sippel, United States District Judge for the1
Eastern District of Missouri.

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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.
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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.
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