                    UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                             No. 94-50341
                           Summary Calendar


UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,


                                versus


CHARLES ARTHUR DAUGHENBAUGH,
                                                Defendant-Appellant.




             Appeal from the United States District Court
                   for the Western District of Texas

                           (March 27, 1995)


Before POLITZ, Chief Judge, KING and STEWART, Circuit Judges.

POLITZ, Chief Judge:

     Charles Arthur Daughenbaugh appeals his conviction of mailing

threatening communications in violation of 18 U.S.C. § 876 and his

sentence of 240 months imprisonment.     Finding no reversible error,

we affirm.

                              Background

     Between 1991 and 1993 Daughenbaugh, an inmate at the Clements

Unit of the Texas Department of Criminal Justice, sent letters to

three Texas state court judges and a United States bankruptcy judge

through the United States mails.   His first letter to Judge John R.
Carter stated:

      Now comes the Aryan warrior to bring you warning of your
      coming death when the new socialist government comes into
      power. When the new government comes into power, all
      races other than the Aryan race will be deported or
      executed, all white judges will be checked out and will
      be asked to leave the country or be executed.

      This is your last warning to change your ways or die!
      The Aryan warrior has spoken.

      An identical letter was sent to Judge Robert E. Raesz.                      A

substantially similar letter to Judge Lee S. Green threatened to

"execute all judges at once," admonishing:                "Get right with your

maker, because your time is at hand because the Aryan warrior shall

sweep the    earth."       Daughenbaugh        also    wrote    to   United   States

Bankruptcy Judge Larry E. Kelly:

      Now comes the Aryan shadow of death to let you know that
      your death is at hand. I, the Aryan shadow of death,
      shall execute you in the very most painful way. As the
      Lord said, every hair on your head is numbered. You will
      never again prosecute an Aryan.

In   a   second   letter     to   Judge       Carter    which    bore     swastikas,

Daughenbaugh stated:

      Now comes the "Lone Aryan warrior" with the Message of
      Death to all U.S. Zog (Zionist Occupational Government)
      American Government officials.     The Aryan Nationalist
      Socialist Movement brings forth an all Aryan Government
      to take the place of the U.S. Zog American Government!
      It will be done by force if necessary, but it will be
      done!   You are hereby given this Aryan Order of our
      movement to resign your Government office now, if you do
      not wish to face treason charges & death for serving this
      U.S. Zog American Government! You are given this chance
      now, to save yourself by obeying this direct Aryan order!
      You have been warned; do what you are told!

      "Hail, Victory!"

      Daughenbaugh     was    indicted        on   five   counts     of   violating

18 U.S.C. § 876, which prohibits use of the mails to transmit a

                                          2
communication containing a threat of injury, and was convicted

after       a   jury    trial.         Departing    upwards     from    the    Sentencing

Guidelines the district court imposed a sentence of 240 months.

This appeal timely followed.



                                          Analysis

      Daughenbaugh            challenges     the    sufficiency    of    the    evidence,

contending that the letters were not threats but, rather, were

political speech protected by the first amendment.                        He seeks a de

novo review of this evidentiary issue because of its constitutional

implications.           In United States v. Turner we noted that "whether or

not the language contained in [the defendant's] letters constitutes

a   `threat'      is     an    issue    of   fact   for   the   jury."1        Guided   by

instructions, such as given herein, removing protected speech from

the definition of "threat,"2 the jury is to determine the nature of

the   subject          communication.3        Appellate    review       is    limited   to

ascertaining whether a rational jury could have found the essential


      1
        960 F.2d 461, 465 n.4 (5th Cir. 1992).
        2
      In Turner we approved the following charge which was given
herein to the jury:

      A "threat" is a serious statement expressing an intention
      to inflict bodily injury or death upon someone, which
      under the circumstances would cause apprehension in a
      reasonable person, as distinguished from political
      argument, idle or careless talk, exaggeration or
      something said in a joking manner. It is not necessary
      to prove that the defendant actually intended or was able
      to carry out the threat made.
        3
      United States v. Malik, 16 F.3d 45 (2d Cir.), cert. denied,
115 S.Ct. 435 (1994).

                                              3
elements of the offense, including the threat, proven beyond a

reasonable doubt.

     Our review of the record leads inexorably to the conclusion

that the evidence amply supports the verdict.        The plain language

of the letters was sufficient to place a reasonable recipient in

apprehension.   The mode of communication -- private letter -- is

the typical means for delivery of threats.            In advancing his

appellate challenge Daughenbaugh cites United States v. Watts.4           We

find Watts inapposite for it involved a public rally, not a private

letter.5 The political rhetoric accompanying the threats furnishes

no consitutional shield.     Rather, the violent tone of the rhetoric

amplifies the threats. The reaction of the recipients is probative

-- the three judges who testified took extra security measures.6

A rational jury was entitled to find that the essential elements of

the offenses were proven beyond a reasonable doubt.

     Daughenbaugh   next     contests    the     refusal    to    suppress

incriminating statements made to Scott Hendricks, an agent with the

Federal Bureau of Investigation.        When agent Hendricks inquired

about the letters Daughenbaugh invoked his Miranda7 rights and

demanded counsel.   One year later Hendricks met Daughenbaugh for

routine   questioning   about   a   written    statement   he    had   given


     4
      394 U.S. 705 (1969).
     5
      See United States v. Bellrichard, 994 F.2d 1318 (8th Cir.),
cert. denied, 114 S.Ct. 337 (1993).
     6
      Malik.
     7
      Miranda v. Arizona, 384 U.S. 436 (1966).

                                    4
supporting another inmate's charge of a civil rights violation by

a guard.8     Hendricks also sought a handwriting exemplar.                Hendricks

testified that Daughenbaugh refused, exclaiming that if he were

forced to furnish a sample of his handwriting he would merely

disguise it, as he often does "and has other people write things

for him." This statement was admitted into evidence over objection

to corroborate the testimony of an inmate who attested to writing

certain of the subject letters at Daughenbaugh's direction.

      Daughenbaugh contends that the admission of the statement

violated Miranda and its progeny.               He maintains that Arizona v.

Roberson9 proscribed questioning about the civil rights charge and

Edwards      v.   Arizona10     prohibited     Hendricks'    request        for     the

handwriting exemplar.           We are not persuaded.            Roberson, which

forbids       subsequent      custodial    interrogations        about     unrelated

criminal offenses after the invocation of the fifth amendment right

to   counsel,     is    inapplicable      because   there   was       no   threat   of

involuntary self-incrimination.               The investigation of the civil

rights charge was noncriminal in nature and the target was not

Daughenbaugh      but    the    guard.        Edwards,   which     precludes        the

reinitiation      of    custodial    interrogation       after    a    request      for

counsel, applies only to conduct "that the authorities should know




      8
      The inmate claimed the guard assaulted him after the inmate
doused him with urine.
      9
       486 U.S. 675 (1988).
      10
           451 U.S. 477 (1981).

                                          5
[is] reasonably likely to elicit an incriminating response."11              A

handwriting sample is nontestimonial evidence beyond the scope of

the right against self-incrimination.12           The bare request for a

sample therefore does not implicate Edwards.

      Finally,     Daughenbaugh     challenges    the    district     court's

departure from the Sentencing Guidelines range of 57 to 71 months

to a sentence of 240 months.         After an evidentiary hearing, the

court found that Daughenbaugh's criminal history category of VI did

not   adequately    reflect   the   seriousness   of    his   past   conduct.

Daughenbaugh's criminal history score was 24, nearly twice the 13

points required for category VI.          Even that score did not fully

take into account Daughenbaugh's conduct in prison, including the

repeated discovery of weapons in his possession and evidence of

escape plans that included the taking of hostages or the killing of

guards.      The court concluded:

      I can't find anything in the record that establishes any
      likelihood that you're not going to continue to commit
      criminal offenses.     You continue in prison and you
      continue here [in the county jails where Daughenbaugh was
      held during trial] at least in possession of weapons that
      can be concluded that you're attempting to escape once
      more. In fact, your whole record shows that you seem to
      have a propensity to engage in criminal conduct at all
      times and perpetuate criminal acts.

      In arriving at the sentence imposed, the district court scaled

the criminal offense levels from 18 to 32, explaining, "I have

considered all of the other offense levels up to a leval 35. . . .


      11
      United States v. Dougall, 919 F.2d 932, 935 (5th Cir. 1990),
cert. denied, 501 U.S. 1234 (1991).
      12
           Id.

                                      6
I considered the information in the presentence investigation and

for the reasons I've stated, [selected] the level of sentencing I

believe is appropriate in your case. . . ."

      Daughenbaugh maintains that the district court did not comply

with the proper methodology for departures under U.S.S.G. § 4A1.3,

as   articulated        by    our   en    banc    decision    in   United   States   v.

Lambert.13       We do not agree.                Lambert requires only that the

district court consider each intermediate adjustment and state that

it   has     done     so,    and    explain      why   the   guideline    category   is

inappropriate         and    why    the    category      chosen    is    appropriate.14

Ordinarily such explanation will make clear, either implicitly or

explicitly, why the intermediate adjustments are inadequate.15 Such

is the situation at bar.                 The district court complied with the

Lambert      teaching        and    struck    a    satisfactory     balance    between

ritualistic formalism and arbitrariness.

      Daughenbaugh also maintains that the departure was excessive.

We are not persuaded. The departure was extensive but Daughenbaugh

displayed unusually violent propensities.                    The sentence was below

the statutory maximum and passes muster.

      AFFIRMED.




      13
           984 F.2d 658 (5th Cir. 1993) (en banc).
       14
       See also United States v. Ashburn, 38 F.3d 803 (5th Cir.
1994) (en banc), petition for cert. filed (Feb. 13, 1995) (No.
94-8084).
      15
           Lambert.

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