                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 06-4462



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

     versus


CLARENCE BOBBY ABBOTT,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-cr-00092-H)


Argued:   February 1, 2007                 Decided:   March 8, 2007


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jennifer Haynes Rose, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: George E. B. Holding, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     After Clarence B. Abbott pleaded guilty to violating 18

U.S.C.A. § 876 (West 2006), the district court imposed an enhanced

sentence     of   sixty   months   imprisonment.   On   appeal,   Abbott

challenges his sentence on several grounds. Principally, he argues

that the district court erred in applying a six-level enhancement

for his victim’s official status and in departing upward on the

ground that criminal history category VI under-represented the

seriousness of his prior crimes.       For the reasons discussed below,

we affirm.



                                     I.

     In November of 2002, while an inmate at Caledonia Correctional

Institution in North Carolina, Abbott mailed a hand-written letter

to Elaine Marshall, the North Carolina Secretary of State.        In the

letter, Abbott threatened to “blow [Secretary Marshall’s] damn head

off” and explicitly described how he would rape her and her

children.     Abbott also wrote that Secretary Marshall “[didn’t]

deserve to uphold [sic] [her] office” and noted that although

Secretary Marshall was “supposed to be the secretary of state,” she

didn’t “do anything to help Theodis Beck [who is the Secretary for

the Department of Correction] with the prison overpopulation.”

     Abbott signed the letter with the name and identification

number of another inmate at Caledonia Correctional Institution.


                                     -2-
Investigators matched Abbott’s handwriting and identified him as

the author of the letter; Abbott then confessed to sending the

letter in order to get the other inmate in trouble.

     The Government charged Abbott with knowingly causing the

United States Postal Service to deliver a communication containing

a threat to injure the person of another, in violation of 18

U.S.C.A. § 876 (West 2006).         Abbott pleaded guilty without benefit

of a plea agreement.

     A probation officer prepared a pre-sentence report (PSR). The

officer assigned Abbott a base offense level of 12, pursuant to

U.S.S.G. § 2A6.1 (2004).            The PSR added a 6-level enhancement

because the victim was a public official and the offense was

motivated by the victim’s official status.                 See id. § 3A1.2(b).

The probation officer then subtracted three levels for Abbott’s

acceptance of responsibility.         The total offense level was 15.

     The   officer   also        calculated     Abbott’s     criminal    history,

assigning 21 criminal history points to Abbott because of his past

offenses and the timing of the instant offense.               This total placed

Abbott in criminal history category VI, the highest category.

Based on Abbott’s criminal history category and offense level, the

Guidelines range was 41 - 51 months.

     The PSR also noted that “the court may wish to consider an

upward   departure   .   .   .    based    on   [Abbott’s]    criminal    history

category   under-representing        the   seriousness      of   [his]   criminal


                                       -3-
history.” The report then admonished counsel to prepare to address

any potential departure issues at the sentencing hearing.

     At sentencing, after hearing from the parties and Secretary

Marshall, the court departed upward sua sponte.                 Referring to §

4A1.3 of the Guidelines, the court found that Category VI “[did]

not reflect [Abbott’s] true criminal history category” and raised

Abbott’s offense level from 15 to 17.                 This upward departure

increased Abbott’s advisory Guidelines range from 41 - 51 months to

51 - 63 months.          The district court then sentenced Abbott to 60

months    imprisonment      (the    statutory    maximum),    three    years   of

supervised release, and a $2,500 fine.



                                       II.

     Abbott argues that the district court erred in applying the

six-level      enhancement    based   on     Secretary   Marshall’s    official

status.        He also asserts that the district court violated the

Federal Rules of Criminal Procedure by failing to inform him of its

intent    to    depart    upward.     Additionally,      he   claims   that    the




                                       -4-
departure itself was unwarranted.1            We consider each of these

contentions in turn.



                                     A.

     Abbott challenges the district court’s application of U.S.S.G.

§ 3A1.2(b), which authorizes a six-level enhancement for certain

offenses   against    government     officials,    when   “the     offense   of

conviction    was   motivated   by   [the   victim’s   official]     status.”

U.S.S.G. § 3A1.2 (2004).        Abbott concedes that his victim was a

government official and that his offense is eligible for the

enhancement, but contests the court’s finding that he was motivated

by his victim’s official status.       We review the sentencing court’s

factual findings for clear error. United States v. Green, 436 F.3d

449, 456 (4th Cir. 2006).

     Abbott    argues   that    he   was    not   motivated   by    Secretary

Marshall’s official status because in sending the letter he only

intended to get the other inmate in trouble. Abbott misunderstands



     1
      Abbott raises two additional arguments that do not merit
extended discussion. First, he suggests that the judicial fact-
finding   underpinning   the   enhancement   violated  Blakely   v.
Washington, 542 U.S. 296 (2004).     This claim fails because the
court sentenced Abbott after United States v. Booker, 543 U.S. 220
(2005), held the Guidelines advisory; thus there is no Sixth
Amendment problem.     Second, Abbott asserts that he suffered
“extreme prejudice” because the district court was “undu[ly]
influence[d]” by the victim’s identity and her “eloquent statements
during [her] oratory.” Brief of Appellant at 23-24. Abbott does
not cite any evidence to support this claim; accordingly, we reject
it.

                                     -5-
the meaning of “motivate” as used in § 3A1.2.        For a crime against

an official to be “motivated” by the official’s status, harming the

official because of that status need not be the offender’s sole or

even primary objective.       See Cirilo-Munoz v. United States, 404

F.3d 527, 531 n.5 (1st Cir. 2005).         A person who kidnaps and

ransoms an official cannot avoid the enhancement by claiming that

he only did it for the money.       All that § 3A1.2 requires is that

the offender targeted the victim because of the victim’s official

status.   See United States v. Garcia, 34 F.3d 6, 8-9, 13 (1st Cir.

1994) (holding crime motivated by police officer’s status when

defendant tried to run over officer in order to escape arrest).

       In this case, Abbott sent Secretary Marshall the letter

because she was the North Carolina Secretary of State.            Abbott

identified Secretary Marshall by her title and referred to her

public responsibilities.      See J.A. 31 (“[Y]ou [are] supposed to be

the secretary of state, and you don’t do anything to help Theodis

Beck   with   the   prison   overpopulation.”).      Further,   Secretary

Marshall’s status was critical to Abbott’s plan -- a letter to a

prominent official was more likely to trigger an investigation that

would make trouble for the other inmate.          The district court did

not clearly err in finding that Abbott’s offense was “motivated by”

Secretary Marshall’s official status.




                                   -6-
                                       B.

      Abbott next asserts that the district court violated Rule

32(h) of the Federal Rules of Criminal Procedure by failing to

notify him of its intent to depart upward pursuant to § 4A1.3 of

the Guidelines.     We review for plain error because Abbott did not

raise this objection before the district court.              See United States

v. Bellamy, 264 F.3d 448, 455 (4th Cir. 2001) (applying plain error

analysis   to   claim   of   lack    of     notice    of   grounds   for    upward

departure); United States v. Spring, 305 F.3d 276, 281 (4th Cir.

2002) (same).      Under the plain error standard, we reverse only if

(1)   there   is   error,    (2)    that    is   plain,    (3)   that   “affects

substantial rights,” and (4) that “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.”                  Johnson

v. United States, 520 U.S. 421, 467 (1997) (quoting United States

v. Olano, 507 U.S. 725, 732 (1993)).

      Rule 32(h) provides that “[b]efore the court may depart from

the applicable sentencing range on a ground not identified for

departure . . . in the presentence report . . . the court must give

the parties reasonable notice that it is contemplating such a

departure.”     Fed. R. Crim. Pro. 32(h) (emphasis added).                 In this

case, the district court departed upward pursuant to § 4A1.3

because it found that Abbott’s criminal history category under-

represented his true criminal history.               The court did not violate

Rule 32(h) because the PSR identified the very ground for departure


                                      -7-
upon       which   the   court   relied:    “Based   on   the   findings   of   the

presentence report, the court may wish to consider an upward

departure from the applicable criminal history category, pursuant

to 4A1.3 (Adequacy of Criminal History), based on [Abbott’s]

criminal history category under-representing the seriousness of the

defendant’s criminal history.”

       Abbott complains that if he had received more notice, his

attorney would have had “adequate time” to investigate Abbott’s

criminal history and mental health record.                Brief of Appellant at

12. However, Abbott’s counsel could have investigated such matters

between receipt of the PSR and the sentencing hearing.                     Abbott

received all the notice required by Rule 32(h). Thus, the district

court did not err, let alone plainly err, in failing to comply with

Rule 32(h).2

       2
      Although not mentioned in his brief, at oral argument Abbott
seemed to suggest that the district court might have violated Rule
32(I). That rule requires sentencing judges to “allow the parties’
attorneys to comment on the probation officer’s determinations and
other matters relating to an appropriate sentence.” Fed. R. Crim.
Pro. 32(i)(1)(C) (2006). We have recognized that the opportunity
to comment may be effectively denied if a court does not prompt
counsel to address a potential ground for departure identified in
the PSR, then departs upward on that ground, and never affords
counsel an opportunity to address the considerations that motivated
its departure. Spring, 305 F.3d at 279-80, 282 (interpreting a
predecessor to Rule 32(i)(1)(C)).      In this case, however, the
district court clearly afforded Abbott an adequate opportunity to
comment.    During the sentencing hearing, the court summarized
Abbott’s extensive criminal history and then asked Abbott’s
counsel, “What should I do and why[?]” Further, after announcing
the upward departure and sentence, the court solicited further
comment from Abbott’s counsel. Abbott took this opportunity to
correct the court’s announcement of a sentence above the statutory
maximum, but did not argue that an upward departure was

                                           -8-
                                   C.

      Finally, Abbott challenges the upward departure itself. After

Booker, “[w]hen we review a sentence outside the advisory guideline

range-whether as a product of a departure or a variance-we consider

whether the district court acted reasonably both with respect to

its decision to impose such a sentence and with respect to the

extent of the divergence from the guideline range.”        United States

v. Perez-Pena, 453 F.3d 236, 241 (4th Cir. 2006) (citing United

States v. Moreland, 437 F.3d 424, 433-34 (4th Cir 2006); United

States v. Hairston, 96 F.3d 102, 106 (4th Cir. 1996)).

      Under the Guidelines, an upward departure “may be warranted”

if “reliable information indicates that the defendant’s criminal

history category substantially under-represents the seriousness of

the   defendant’s   criminal   history   or   the   likelihood   that   the

defendant will commit other crimes.”           U.S.S.G. § 4A1.3(a)(1)

(2004).    A departure from criminal history category VI may be

appropriate “[i]n the case of an egregious, serious criminal record

in which even the guideline range for Criminal History Category VI

is not adequate to reflect the seriousness of the defendant’s

criminal history.”    Id. application note 2(B).

      The question here is whether the district court was reasonable

in concluding that Category VI substantially under-represented the

inappropriate. Having been given two chances to address how his
criminal history should affect his sentence, Abbott cannot prevail
on a claim that the court violated Rule 32(i) by denying him an
opportunity to comment.

                                  -9-
“seriousness” of Abbott’s criminal history.       Clearly, Category VI

does not fully reflect the number of crimes in Abbott’s past.         He

had 21 criminal history points, 8 more than the 13 required for

Category VI.    See U.S.S.G. ch. 5, pt. A (2004).        Consequently,

almost forty percent of Abbott’s criminal history points are not

accounted for by his Category VI placement.       Further, the PSR did

not assign Abbott any criminal history points for some of the

sentences resulting from his 34 convictions, either because of

their age or because they were related to sentences for which he

did receive criminal history points.

     Moreover, Abbott has received two sentences “of substantially

more than one year [that were] imposed as a result of independent

crimes    committed     on    different   occasions.”      U.S.S.G.   §

4A1.3(a)(2)(B) (2004).       The Guidelines suggest that such sentences

may be reliable evidence that Category VI under-represents the

seriousness    of   a   defendant’s   history.     Id.    This   under-

representation occurs because the Guidelines assign the same number

of points to all sentences of over a year, regardless of how long

they are or how many convictions they punish.      See U.S.S.G. § 4A1.1

(2004).

     Furthermore, many of Abbott’s crimes are serious.       He has 16

felony convictions for breaking and entering, 4 for larceny, and 7

for breaking, entering, and larceny.       Although Abbott attempts to

minimize these crimes by characterizing them as “non-violent,”


                                   -10-
Brief of Appellant at 16, the offenses involve significant harm to

property and substantial risk of personal injury to others.     In

addition, while in prison Abbott has been disciplined for sending

a graphic threatening letter, threatening a staff member (3 times),

assaulting a staff member (3 times), and damage to state property

(2 times). The letter Abbott sent to Secretary Marshall seems part

of this pattern of threatening conduct.

     In light of the nature and extent of Abbott’s history, the

sentencing court’s decision to impose an upward departure was

reasonable, and the extent of the upward departure, which led to a

sentence only nine months longer the top of the original Guidelines

range, was similarly reasonable.



                               III.

     For all the reasons set forth within, the judgment of the

district court is

                                                         AFFIRMED.




                               -11-
