18‐313‐cr
United States v. Peter J. Santos

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 7th day of February, two thousand twenty.

PRESENT:            DENNIS JACOBS,
                    GUIDO CALABRESI,
                    DENNY CHIN,
                                         Circuit Judges.
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UNITED STATES OF AMERICA,
                    Appellee,
               ‐v‐                                                                 18‐313‐cr

PETER J. SANTOS,
                                        Defendant‐Appellant.

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FOR APPELLEE:                                                MARC H. SILVERMAN, Assistant United
                                                             States Attorney, for John H. Durham, United
                                                             States Attorney for the District of Connecticut,
                                                             New Haven, Connecticut.
FOR DEFENDANT‐APPELLANT:                   DEVIN MCLAUGHLIN, Langrock Sperry &
                                           Wool, LLP, Middlebury, Vermont, and
                                           Jeremy Gutman, New York, New York.

              Appeal from the United States District Court for the District of

Connecticut (Thompson, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in

part and VACATED in part and the case is REMANDED for resentencing.

              Defendant‐appellant Peter J. Santos appeals from a judgment entered

January 30, 2018, after a jury trial, convicting him of threatening a federal official in

violation of 18 U.S.C. § 115(a)(1)(B). The district court sentenced Santos principally to

41 monthsʹ imprisonment. On appeal, Santos challenges the sufficiency of the evidence,

the district courtʹs evidentiary rulings, and the procedural reasonableness of his

sentence. We assume the partiesʹ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

              In 2014, Santos was convicted in the Southern District of New York

(Wood, J.) of unrelated crimes (related to the transportation of stolen goods) and

sentenced to 25 monthsʹ imprisonment and three yearsʹ supervised release. While on

supervised release in the District of Connecticut after completing his prison term,

Santos tested positive for heroin more than a dozen times and failed to complete several

drug programs. On August 31, 2016, the district court (Arterton, J.) held a hearing to


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address Santosʹs violations of his conditions of supervised release. After concluding

that Santos violated the conditions of his supervised release, the district court sentenced

Santos principally to six monthsʹ imprisonment, to be followed by two years of

supervised release. As he was leaving the court room, Santos turned to his probation

officer and made a threatening comment. A federal grand jury eventually indicted

Santos for threatening a federal official, in violation of 18 U.S.C. § 115(a)(1)(B). On June

2, 2017, a jury convicted Santos. After the district court (Thompson, J.) imposed

sentence, this appeal followed.

                                     DISCUSSION

I.     Sufficiency of the Evidence

       A.     Applicable Law

              To be liable for violating § 115(a)(1)(B), a defendant must, inter alia,

threaten a federal official with the intent to impede, intimidate, or interfere with the

individual in the performance of official duties. See 18 U.S.C. § 115(a)(1)(B). Although

the statute criminalizes certain speech, the Supreme Court has held that the First

Amendment does not afford protection to speech that constitutes a ʺtrue threat.ʺ Watts

v. United States, 394 U.S. 705, 708 (1969) (internal quotation marks omitted). This Court

has traditionally applied an objective test to determine whether a defendantʹs statement

is a true threat. United States v. Turner, 720 F.3d 411, 420 (2d Cir. 2013). A statement

rises to the level of true threat if ʺan ordinary, reasonable recipient who is familiar with


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the context of the [communication] would interpret it as a threat of injury.ʺ Id. (quoting

United States v. Davila, 461 F.3d 298, 305 (2d Cir. 2006) (internal quotation marks

omitted)). ʺ[W]hether [the] words used are a true threat is generally best left to the

triers of fact.ʺ United States v. Amor, 24 F.3d 432, 436 (2d Cir. 1994) (internal quotation

marks omitted).

              ʺWe review sufficiency of evidence challenges de novo, but defendants face

a heavy burden, as the standard of review is exceedingly deferential.ʺ United States v.

Baker, 899 F.3d 123, 129 (2d Cir. 2018) (internal quotation marks omitted). ʺWe must

view the evidence in the light most favorable to the government, crediting every

inference that could have been drawn in the governmentʹs favor, and deferring to the

juryʹs assessment of witness credibility and its assessment of the weight of the

evidence.ʺ Id. (internal quotation marks and brackets omitted). ʺ[W]e will sustain the

juryʹs verdict if any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.ʺ Id. (internal quotation marks omitted).

       B.     Application

              Santos contends that the evidence is insufficient to show that he conveyed

a ʺtrue threatʺ to his probation officer. The argument fails because the record contains

ample evidence supporting the juryʹs verdict, including testimony from six different

witnesses present at the August 31, 2016 violation hearing. For example, the probation

officer testified that while the U.S. Marshals escorted Santos from the courtroom, he


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turned and said, ʺWhen I get out, Iʹm coming for you.ʺ Govʹt Appʹx at 281. Two U.S.

Marshals also testified to hearing the same comment. See Govʹt Appʹx at 361‐62, 393.

Moreover, the court reporter testified that Santos said, ʺsomething to the effect of ʹWhen

I get out, Iʹll come see you,ʹ or ʹIʹll come look for you.ʹʺ Govʹt Appʹx at 92‐93. Beyond

the trial testimony, there is additional evidence that Santos exhibited open hostility to

his probation officers in two different recorded prison calls prior to his August 31, 2016

violation hearing. See Govʹt Appʹx at 682, 684. After reviewing this evidence, a

reasonable jury could have concluded beyond a reasonable doubt that Santosʹs

statement was a ʺtrue threatʺ sufficient to violate § 115(a)(1)(B).

II.    Evidentiary Rulings

       A.     Applicable Law

              Santos contends that he was deprived of a fair trial because the district

court erroneously admitted evidence of the value of the stolen goods involved in his

previous conspiracy conviction, during the governmentʹs redirect examination of two

witnesses. ʺThe scope of redirect examination is a matter entrusted to a trial judgeʹs

broad discretion.ʺ United States v. Vasquez, 267 F.3d 79, 85 (2d Cir. 2001) (internal

quotation marks omitted). We review the district courtʹs decision to admit evidence for

abuse of discretion, United States v. Spoor, 904 F.3d 141, 153 (2d Cir. 2018), and we will

reverse only if an error affects a ʺsubstantial right,ʺ United States v. Garcia, 413 F.3d 201,

210 (2d Cir. 2005) (quoting Fed. R. Evid. 103(a)).


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       B.    Application

             Santos argues that evidence of the value of the stolen goods involved in

his prior convictions was irrelevant and only served to show his propensity to commit

the charged offense. We disagree. First, the governmentʹs redirect was relevant under

Federal Rule of Evidence 403 as a response to the defenseʹs argument that Santos was

unlikely to engage in criminal conduct because he was simply a heroin addict. See Dist.

Ct. Docket No. 113 at 16; see also Govʹt Appʹx at 512 (defense counsel portraying Santos

as a drug addict living in a ʺcareless mannerʺ who made a ʺcareless commentʺ to his

probation officer). That Santosʹs prior criminal actions involved a large sum showed a

degree of sophistication relevant to the juryʹs assessment of whether Santos made a

ʺcareless comment,ʺ Govʹt Appʹx at 512, or a ʺtrue threat.ʺ Second, the testimony was

not bad‐acts evidence under Federal Rule of Evidence 404 because the government was

permitted on redirect to explore the nature and circumstances of the prior convictions

after defense counsel, on cross‐examination, asked whether the offenses were ʺcrimes of

violence.ʺ Govʹt Appʹx at 188. Accordingly, the district court did not abuse is discretion

in admitting the testimony.

III.   Procedural Reasonableness of Sentence

       A.    Applicable Law

             In calculating Santosʹs sentence, the district court declined to apply a

reduction under United States Sentencing Guidelines (ʺU.S.S.G.ʺ) § 2A6.1(b)(6), which


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permits a four‐level reduction if the threat ʺinvolved a single instance evidencing little

or no deliberation.ʺ This Court considers two factors in determining whether §

2A6.1(b)(6) applies: ʺ(1) whether, and under what circumstances, the threat itself has

been repeated and (2) whether there is evidence of planning or some effort to carry out

the threat.ʺ United States v. Wright‐Darrisaw, 781 F.3d 35, 41 (2d Cir. 2015).

                A district court ʺcommits procedural error where it . . . makes a mistake in

its Guidelines calculation.ʺ United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en

banc). We review de novo a district courtʹs interpretation of the Guidelines and

for clear error its factual findings regarding the applicability of specific enhancements

or reductions. See United States v. Richardson, 521 F.3d 149, 156 (2d Cir. 2008).

       B.       Application

                We conclude that the district court committed procedural error in

declining to apply § 2A6.1(b)(6) because there was insufficient evidence of deliberation

and repetition of the threat. The evidence relied on by the district court demonstrated

that Santos was agitated by the results of the violation hearing, but it did not establish

that Santos engaged in any deliberation or planning. See Wright‐Darrisaw, 781 F.3d at

41. Indeed, the fact that Santos was ʺunder controlʺ during parts of the hearing shows

that his threat was a spontaneous outburst triggered by his mounting anger. Govʹt

Appʹx at 640.




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              Moreover, there was insufficient evidence that Santos repeated this threat.

The district court erred in concluding that Santosʹs discussion with the U.S. Marshals

outside the courtroom constituted a separate repetition of the threat. After Santos made

his threatening comment, the U.S. Marshals moved him outside the courtroom and

escorted him down a hallway to an elevator. It was at that point ‐‐ which likely was just

moments later ‐‐ that Santos told a U.S. Marshal, ʺ[w]e all have to meet our maker at

some point, whether itʹs by me or someone else.ʺ Govʹt Appʹx at 369. Given the

temporal proximity between his threat and this comment and all the circumstances,

this was a single episode rather than multiple threats. Because the record contains

insufficient evidence of deliberation and repetition, the district court erred in declining

to apply § 2A6.1(b)(6). On this record, we conclude that Santos is entitled to a four‐level

reduction pursuant to § 2A6.1(b)(6). Accordingly, his Total Offense Level was 14, and

with a Criminal History Category of III, his Guidelines range is 21 to 27 months. The

district court shall conduct a plenary resentencing.

                                         *   *    *




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             We have considered Santosʹs remaining arguments and conclude they are

without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED as to the conviction and VACATED as to the sentence, and the case is

REMANDED for resentencing. The mandate shall issue forthwith. The district court is

instructed to proceed to resentencing as soon as practicable in light of the reduced

Guidelines range.

                                         FOR THE COURT:
                                         Catherine OʹHagan Wolfe, Clerk




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