                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4060


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)


Submitted:   September 14, 2015             Decided:   October 20, 2015


Before SHEDD and    DUNCAN,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Rodolfo Cejas, II, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant.     Dana J. Boente, United
States Attorney, William D. Muhr, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Todd Allen Spencer pled guilty to one count of threat to

injure    by    communication,      in   violation         of    18       U.S.C.     § 876(c)

(2012).     The conviction stemmed from a letter Spencer mailed to

the Clerk of the United States District Court for the Eastern

District of Virginia.             On appeal, Spencer challenges his 46-

month     sentence,       arguing    that       the   district            court    erred     in

adjusting       his     offense     level       pursuant        to    U.S.         Sentencing

Guidelines       Manual     § 2A6.1(b)(1)         (2014)    because           he     included

dried, powdery toothpaste in the letter’s envelope.                                We vacate

Spencer’s sentence and remand for resentencing.

     “We       review     the   reasonableness        of    a        sentence       under     a

deferential      abuse-of-discretion            standard,       first       ensuring       that

the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the

Guidelines range.”          United States v. Cox, 744 F.3d 305, 308 (4th

Cir. 2014) (brackets and internal quotation marks omitted).                                 In

reviewing      the    district    court’s       application          of    the     Sentencing

Guidelines, we review factual findings for clear error and legal

conclusions de novo.            United States v. Strieper, 666 F.3d 288,

292 (4th Cir. 2012).

     A     six-level        adjustment          is    appropriate             under        USSG

§ 2A6.1(b)(1) “[i]f the offense involved any conduct evidencing

an intent to carry out such threat.”                    The application of this

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adjustment hinges on “‘the defendant’s intent and the likelihood

that       the    defendant     would      carry      out     the   threat.’”    United

States v. Worrell, 313 F.3d 867, 876 (4th Cir. 2002) (quoting

United States v. Gary, 18 F.3d 1123, 1128 (4th Cir. 1994)).

“The majority of circuit courts require that a defendant engage

in    some       form   of   overt   act    before      sustaining     a   § 2A6.1(b)(1)

enhancement.”           United States v. Goynes, 175 F.3d 350, 353 (5th

Cir. 1999) (citing Gary, among other authority).                           Accordingly,

“threats alone” are insufficient to support an adjustment under

§ 2A6.1(b)(1).          Id. at 355.

       To determine if Spencer’s inclusion of dried toothpaste in

the     envelope         containing        his       letter     constitutes     “conduct

evidencing an intent to carry out such threat,” we must first

identify the threat(s) that Spencer’s letter communicated.                           On

appeal, the Government argues that Spencer’s letter contains a

threat to kill or injure the recipient of the letter and a

threat to disrupt the workings of the district court. *                              The

Government, however, did not present the latter interpretation

to the district court, and nothing in the record shows that the

       *Below, the Government also argued Spencer’s letter
contained a threat to place the recipient in fear of her life.
On appeal, the Government does not raise any argument regarding
this interpretation of the threat, thus abandoning it.      See
United States v. Powell, 666 F.3d 180, 185 n.4 (4th Cir. 2011)
(stating that Government abandons arguments raised below where
it does not present them in its appellate brief).



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court    relied       on     this        interpretation         when      imposing         the

§ 2A6.1(b)(1) adjustment.                Accordingly, we limit our review of

the propriety of the adjustment to the theory that Spencer’s

inclusion of the dried toothpaste constituted conduct evidencing

an intent to carry out a threat to kill or injure the recipient

of his letter.        See United States v. Llamas, 599 F.3d 381, 389

(4th Cir. 2010) (holding that appellate court must confine its

basis for upholding adjustment to theories relied on by district

court   and    “may   not    guess       at   the    district      court’s     rationale,

searching the record for . . . any . . . clues that might

explain a sentence” (internal quotation marks omitted)).

     While the application notes to USSG § 2A6.1(b)(1) do not

discuss or provide any examples of what constitutes “conduct

evidencing an intent to carry out [a] threat,” the section does

cross-reference       USSG    §     2M6.1,        which   pertains     to    the     use    or

threatened     use    of    biological        agents      and   toxins.         See    USSG

§ 2A6.1(c).      The commentary to USSG § 2M6.1 does discuss when a

defendant’s conduct evidences an intent to carry out a threat.

USSG § 2M6.1 cmt. n.2.                Relevant here, a defendant does not

engage in conduct evidencing an intent to carry out a threat to

use a biological agent or toxin by dispersing a substance that

appears to be an agent or toxin but is not, and the defendant

knows   is    not,    an     actual       biological       agent     or     toxin.         Id.

Applying      this    concept       to     the      underlying      facts,     Spencer’s

                                              4
inclusion of a substance he knew to be dried toothpaste does not

constitute conduct evidencing an intent to carry out a threat to

kill or injure the recipient of his letter because it does not

show a subjective belief on Spencer’s part that he would carry

out the threat, or increase the likelihood that he would carry

it out.       See Worrell, 313 F.3d at 876.            Accordingly, we conclude

that    the     district       court   erred    in     applying     the    six-level

adjustment under USSG § 2A6.1(b)(1).

       When    we   find   a   procedural      error   at    sentencing,       we   must

consider whether the error was harmless.                    United States v. Lynn,

592 F.3d 572, 576 (4th Cir. 2010).                     “A Guidelines error is

considered harmless if we determine that (1) the district court

would have reached the same result even if it had decided the

guidelines issue the other way, and (2) the sentence would be

reasonable even if the guidelines issue had been decided in the

defendant’s favor.”            United States v. Gomez-Jimenez, 750 F.3d

370, 382 (4th Cir.) (internal quotation marks omitted), cert.

denied, 135 S. Ct. 305, 384 (2014).               Because the error increased

Spencer’s Guidelines range and because nothing in the record

indicates that, absent the error, the district court would have

departed      upward   and     imposed   a     46-month      sentence,    we    cannot

conclude that the error was harmless.

       Accordingly, we vacate Spencer’s sentence and remand for

resentencing         without       application         of     the    § 2A6.1(b)(1)

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adjustment.     We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                       VACATED AND REMANDED




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