                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 16-4026


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TODD ALLEN SPENCER, a/k/a Todd Alan Spencer,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:13-cr-00131-RGD-LRL-1)


Argued:   December 8, 2016                Decided:   February 9, 2017


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by published opinion. Judge Wilkinson wrote              the
opinion, in which Judge Shedd and Judge Duncan joined.


ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.      Richard Daniel Cooke,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender,
Rodolfo Cejas, II, Assistant Federal Public Defender, OFFICE OF
THE   FEDERAL   PUBLIC   DEFENDER,  Alexandria,  Virginia,   for
Appellant.   Dana J. Boente, United States Attorney, Alexandria,
Virginia, William D. Muhr, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.
WILKINSON, Circuit Judge:

     Todd Allen Spencer pleaded guilty to mailing a threatening

letter in violation of 18 U.S.C. § 876(c). The district court

deviated upward from the advisory Guidelines range to account

for the threat’s effect on the victim and imposed a 45-month

sentence.

     Spencer now contends that his sentence was procedurally and

substantively     unreasonable.     For   the       reasons     that   follow,   we

affirm.

                                     I.

     On September 12, 2013, the clerk’s office of the federal

courthouse in Norfolk, Virginia received a letter from an inmate

at Chesapeake City Jail identified as “T.A. Spencer.” The letter

was covered in white powder and read, in part, as follows:

     You never know when it can happen! The very letter you
     hold may indeed be the last you hold. This letter may
     contain on it what takes your last breath. Who knows?
     Only time will tell. Good luck to you.
     . . . .
     Should you run? Should you stay? Who do you call to
     make it all go away? Are you already infected with the
     pain? What do you do? Is there anything to gain? Only
     time will tell.

J.A. 14-15. The clerk who opened the letter was “disconcerted

and afraid”; at the instruction of the U.S. Marshals she locked

herself   alone    —   with   the   letter      —    in   the    mailroom   until

inspectors arrived. J.A. 15. In the course of the investigation,


                                      2
one inspector visited Spencer at Chesapeake City Jail, where he

admitted to sending the letter and explained that the powder was

dried toothpaste. He had included the powder “to enhance the

effect of the letter in order to put fear into the reader that

the white powdery substance was some type of poison.” Id.

     On October 2, 2014, Spencer pleaded guilty to sending a

threatening     communication     in       violation   of     § 876(c).     The

probation officer prepared a presentence report (“PSR”), which

recommended a base offense level of 12. The probation officer

then applied a six-level enhancement because, in his view, the

offense involved “conduct evidencing intent to carry out [the]

threat” contained in the letter. U.S. SENTENCING GUIDELINES MANUAL

§ 2A6.1(b)(1)    (U.S. SENTENCING COMM’N      2016).   After    factoring    in

Spencer’s    acceptance   of    responsibility     and      criminal   history

category, the PSR yielded an advisory Guidelines range of 37 to

46 months.

     At the sentencing hearing on January 13, 2015, the district

court overruled Spencer’s objection to the six-level enhancement

and sentenced him to 46 months’ imprisonment. The district court

expressed     concern   about   the    “devastat[ing]”       impact    on   the

victim: “One can’t forget it. It’s like war. . . . You can’t

forget what people do when they face the ultimate.” J.A. 46, 59.

Given the “very, very serious” nature of the offense, the court



                                       3
observed     that   the     Guidelines    were      “very      kind”    and    therefore

imposed a sentence at the top of the advisory range. J.A. 60-61.

     On appeal, this court found that the district court erred

in applying the six-level enhancement. United States v. Spencer,

628 F. App’x 867 (4th Cir. 2015). The court determined that

Spencer’s threat did not qualify for the § 2A6.1(b)(1) increase

because the use of harmless toothpaste did not suggest an intent

to   carry    out     the    threat      to   kill        or   injure       the   clerk.

Accordingly,    the    panel       vacated    and    remanded       for     resentencing

without application of the enhancement.

     On January 12, 2016, the district court noted at the outset

of   the   resentencing       hearing     that,      in     light      of   the   Fourth

Circuit’s      mandate,       it     would     not        apply     any       additional

enhancements. But the court explained that a sentence in the

range of 21 to 27 months would be “totally inadequate” based on

the sentencing factors in 18 U.S.C. § 3553(a). J.A. 118. The

district court reiterated its concern about the need to “afford

adequate deterrence” to similarly situated offenders. J.A. 127.

The court also underscored the importance of providing “just

punishment” that reflected the serious nature of the offense:

“The lady who got that letter thought it was anthrax, and she

thought somebody had sentenced her to death.” J.A. 126-27.

     Taking these “factors into consideration and the fact that

[Spencer] ha[s] successfully appealed the prior sentence,” the

                                          4
court decided to “upwardly depart” and imposed a sentence of 45

months. J.A. 128. The district court reasoned that the sentence

was “fair under the circumstances” and one that it “would have

given him if there had never been any . . . [Guidelines.]” J.A.

133.   Although     the     court       maintained           that    it       was   “strictly     an

upward   departure,”        id.,       on    the       Statement         of   Reasons      for   the

judgment it checked the box for a variance sentence and cited

the    § 3553(a)     factors       as       the       basis    for       deviating      from     the

Guidelines, J.A. 244-45.

                                                 II.

       We review a sentence for both procedural and substantive

reasonableness.       See       Gall    v.       United       States,         552   U.S.   38,     51

(2007). We first ensure that the district court committed no

significant procedural error, such as “improperly calculating[]

the    Guidelines    range,        .    .    .     selecting         a    sentence      based     on

clearly erroneous facts, or failing to adequately explain the

chosen sentence.” Id. If the sentence is procedurally sound, we

then     consider         its      substantive                reasonableness            under      a

“deferential abuse-of-discretion standard.” Id. at 52. While a

district court’s explanation for the sentence must “support the

degree    of   the     variance,”            id.        at     50,       it    need     not      find

“extraordinary circumstances” to justify a deviation from the

Guidelines, id. at 47. Rather, because district courts are “in a

superior position to find facts and judge their import,” all

                                                  5
sentencing     decisions       —    “whether        inside,    just     outside,    or

significantly outside the Guidelines range” — are entitled to

“due deference.” Id. at 41, 51.

     With     these    principles         in    mind,   we    turn     to   Spencer’s

procedural and substantive challenges to the sentence.

                                               A.

     Spencer first contends that the district court erred by

failing to provide advance notice of its intention to depart

from the advisory Guidelines range. See Fed. R. Crim. P. 32(h)

(requiring a district court to provide “reasonable notice” that

it is considering a departure from the Guidelines “on a ground

not identified for departure either in the presentence report or

in a party’s prehearing submission”). Spencer notes that the

district     court    repeatedly      characterized          the   sentence   as    an

upward “departure,” see J.A. 128, 133-35, yet never advised the

parties that it was contemplating such an action. Consequently,

he claims that he was deprived of the opportunity to challenge

the increased sentence. There are several difficulties with this

argument, which we address in turn.

     For starters, the boundary between departures and variances

is   often    murky,     and       this    case      especially       confounds    the

distinction. Because the circumstances surrounding threats vary

substantially, § 2A6.1 gives district courts latitude to depart

from the Guidelines. See § 2A6.1 cmt. n.4(A). The provision does

                                           6
not set forth a comprehensive departure framework for threats

cases,     but     instead       invites        district      courts      to     apply       other

generic    departures           as    necessary.       Id.    (referencing           additional

departures in Chapter Five). Given the dearth of guidance for

capturing the seriousness of such a factually variable offense,

the   considerations         underlying          a    departure      in    a   threats        case

converge with those underlying a variance to an unusual degree.

      Nonetheless,          a        measure     of     formality         must        mark    the

sentencing       procedure,          and   the    district      court      was       simply    too

casual     about     the     course        it    intended      to    undertake.          At    the

resentencing hearing the court repeatedly stated that it would

“upwardly depart,” see J.A. 128, 133-35, but its reasoning —

resting     on     the     § 3553(a)        factors         rather     than      a    departure

provision — supported a variance, see J.A. 126-28. Likewise, on

the Statement of Reasons for the judgment the court checked the

box for a variance sentence and cited various § 3553(a) factors

as the basis for deviating from the Guidelines. J.A. 244-45.

While it may be true that “the practical effects of applying

either a departure or variance are the same,” see United States

v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011), the court’s

colloquial migration between the two concepts was at a minimum

imprecise.

      We   conclude,        nonetheless,             that    Spencer      cannot      establish

that any lack of notice affected his substantial rights. Because

                                                 7
Spencer did not raise the issue in the district court, we review

for plain error. Fed. R. Crim. P. 52(b); Henderson v. United

States, 133 S. Ct. 1121, 1126-27 (2013). Spencer thus bears the

burden of showing “that, but for [the error claimed], the result

of the proceeding would have been different.” United States v.

Dominguez Benitez, 542 U.S. 74, 82 (2004).

       Spencer summarily asserts that he was prejudiced by the

lack    of   formal    notice,       but   the    district     court     repeatedly

telegraphed     that        it     might   deviate      from   the     Guidelines.

Throughout the original sentencing hearing, the letter’s effect

on the victim was front and center. See J.A. 42–43, 46–47, 52,

54, 58–59. And it was no secret that the court was troubled by

the “very, very serious” nature of the offense: It stressed the

need to provide “just punishment” and “adequate deterrence” and

remarked that the initial Guidelines range was “very kind to

[Spencer].” J.A. 59-61. Accordingly, when the removal of the

§ 2A6.1(b)(1) enhancement resulted in an even lower Guidelines

range, Spencer had every reason to believe that the court might

adopt an above-Guidelines sentence. Indeed, at resentencing the

court stated that the original sentence was “fair and fit,” J.A.

127, and that it would have imposed the same sentence even if

the    Guidelines     had    not    applied,     J.A.   133.   Spencer    thus   had

numerous opportunities to address the district court’s concerns

about the letter’s effect upon the victim and “the record does

                                           8
not indicate that a statement announcing th[e] possibility [of

an    increased      sentence]       would          have     changed        the        parties’

presentations in any material way.” Irizarry v. United States,

553 U.S. 708, 715 (2008).

                                               B.

      Spencer       also    asserts       that       his      45-month       sentence        is

substantively        unreasonable.             His     substantive           (or         hybrid

procedural      /   substantive)         argument       is    essentially          that    the

sentence    was     too    much.    In    particular,          he    insists       that    the

severity of the sentence rested on improper sentencing factors

and unfounded factual findings. For the reasons that follow, we

disagree.

      As   an   initial      matter,      we    simply       do     not    find    that    the

district court rested its sentence on improper grounds. Pursuant

to our mandate, the court made clear that it was not applying

any   additional          enhancements         at     resentencing.          Rather,       the

district court based its sentence on the intended effect on the

victim,     explaining       that    the        reduced       Guidelines          range    was

“totally    inadequate”        given     the        serious       nature    of     a    threat

accompanied by ostensible poison. J.A. 118. In other words, the

court tailored its sentence in light of traditional § 3553(a)

sentencing factors such as deterrence and punishment. See J.A.

127. This sort of particularized assessment is the hallmark of

individualized sentencing, see Gall, 552 U.S. at 50, and we see

                                            9
no reason to question the district court’s decision to deviate

from the Guidelines on this basis.

       The inferences drawn by the district court here lay within

the bounds of its discretion. The trial court, to be sure, used

some vivid rhetoric in explaining the sentence, surmising that

the victim “thought somebody had sentenced her to death,” J.A.

127, and “it’s something one can’t forget. . . . It’s like war,”

J.A. 59. But these expressions were hardly divorced from the

facts of Spencer’s case. After all, Spencer had sent a letter

that    threatened       death.      To    compound          the     victim’s       horror,      he

included     with       the     letter         dried     toothpaste          that      resembled

anthrax. The U.S. Marshals took the threat seriously and ordered

the victim to lock herself in a confined space. And she waited

alone    with     the    potential        toxin        until    the       authorities      could

determine       its     true    nature.        From     these      facts,        the   rest     are

reasonable inferences that could be drawn by anyone confronted

with a “prank” that was distinctly unfunny.

       We   are    mindful      that      we    have    charged          district      courts   to

explain     the    basis       for   their      sentence.          See    United       States    v.

Carter, 564 F.3d 325, 328-29 (4th Cir. 2009) (instructing that

the     district      court      must      “justify          [its]       sentence       with    an

individualized          rationale”);           see    also     Gall,       552    U.S.    at     50

(advising that the judge “must adequately explain the chosen

sentence to allow for meaningful appellate review and to promote

                                                10
the perception of fair sentencing”). But there is also a balance

to    be   struck.     We    want   trial       judges    to    offer     a    “rationale

tailored to the particular case at hand,” Carter, 564 F.3d at

330, but we also take seriously the Supreme Court’s injunction

that those same sentencing rationales are in turn entitled to

“due deference” on appeal, Gall, 552 U.S. at 51. The district

court’s expressions of dismay at Spencer’s actions were thus not

impermissible so long as they bore upon the § 3553(a) factors of

deterrence       and   punishment.       Indeed,       many    upward    departures     or

variances will be accompanied by some expression of concern that

the   Guidelines       do    not    reflect      the    full    seriousness       of   the

offense.

       Spencer understandably objects to the increased sentence.

But he acknowledged that the court “has the right to impose a

sentence it deems sufficient but not greater than necessary.”

J.A. 120.        Although     Spencer       contends          that   there       was    no

substantial       disruption        of     government         functions       here,    see

U.S.S.G.    § 2A6.1(b)(4)(A),            that    did    not    deprive    the    district

court of the right to apply the § 3553(a) factors, specifically,

in this age of unbalanced acts, the need to deter depredations

of this kind in the future. It was not error therefore for the

district     court      to    recognize         that     government’s         functioning

depends     on   the    indispensable       efforts       of    an   underappreciated

workforce and that no employee deserves to endure what Spencer

                                            11
indisputably intended for the recipient of the letter to endure

here.    The   district   court   could    reasonably   believe   that   the

effect on the victim was no small matter and, indeed, if there

be such a thing, that this was no ordinary threat. We hold that

its sentence was substantively reasonable. *

                                    III.

     The judgment of the district court is accordingly

                                                                  AFFIRMED.




     * We decline to draw an inference of actual vindictiveness
from the district court’s acknowledgment on remand that Spencer
“successfully appealed the prior sentence.” J.A. 128. To be
sure, “[d]ue process requires that vindictiveness play no role
in resentencing the defendant.” United States v. Olivares, 292
F.3d 196, 198 (4th Cir. 2002). But this passing reference to an
appeal does not allow us to infer actual vindictiveness on the
part of the trial court, particularly where the district court’s
concern from the beginning rested on non-vindictive factors such
as the serious nature of this offense and the need to deter
others like it in the future.


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