                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0409n.06

                                            No. 11-1358

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                                     FILED
                                                                                        Apr 13, 2012
UNITED STATES OF AMERICA,                         )                              LEONARD GREEN, Clerk
                                                  )
       Plaintiff-Appellee,                        )
                                                  )   ON APPEAL FROM THE UNITED
v.                                                )   STATES DISTRICT COURT FOR THE
                                                  )   EASTERN DISTRICT OF MICHIGAN
ARTHUR THOMAS TUCKER,                             )
                                                  )
       Defendant-Appellant.                       )
                                                  )


       Before: MARTIN, COOK, and KETHLEDGE, Circuit Judges.



       COOK, Circuit Judge. Arthur Tucker pleaded guilty to one count of using a telephone to

threaten injury or destruction by explosives, in violation of 18 U.S.C. § 844(e). The district court

sentenced him to 37 months’ imprisonment. For the following reasons, we vacate the district court’s

sentence and remand for resentencing.


       Tucker urges the court to reverse the district court’s imposition of the four-level “substantial

disruption of business function” enhancement under § 2A6.1(b)(4). We review legal conclusions

regarding application of the Guidelines de novo and factual findings in applying the Guidelines for

clear error. United States v. Jackson, 635 F.3d 205, 207 (6th Cir. 2011). The § 2A6.1(b)(4)

enhancement applies when “the offense resulted in . . . substantial disruption of public, governmental,
No. 11-1358
United States v. Tucker


or business functions or services.” The district court noted the following facts in explaining its

decision to apply the enhancement:


        [I] have a letter from Blue Cross Blue Shield which indicates that their losses on this
        were on the order of $558,000. In addition to that, the threat of this nature, which was
        a bomb threat, no matter why it was made, required Blue Cross Blue Shield to
        completely empty out their headquarters tower downtown, and in the middle of a
        business day I might add, and I think that clearly any objective officer would -- well,
        this objective court officer would conclude that that was a substantial disruption of the
        business practices of Blue Cross Blue Shield.


Neither party disputes these facts, all of which appear in the Presentence Investigation Report. At the

sentencing hearing, the district court adopted the factual findings in the PSR without objection from

either party.


        As the district court and both parties note, little case law exists regarding the scope of §

2A6.1(b)(4). But our sister circuits apply the enhancement in cases involving disruptions similar in

scale to those that Tucker caused in this case. See, e.g., United States v. Dudley, 463 F.3d 1221, 1226

(11th Cir. 2006) (applying enhancement because the defendant’s “threatening letter resulted in closing

half a floor of the state courthouse for two hours and the suspension of judicial business involving

[a judge] for longer than that” and “the hazardous materials unit responded to the emergency and an

officer and [the judge’s] secretary were placed under quarantine while the FBI determined whether

the white powder from the envelope contained anthrax”). We do likewise and reject Tucker’s §

2A6.1(b)(4) challenge.



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No. 11-1358
United States v. Tucker


       Tucker, citing Tapia v. United States, 131 S. Ct. 2382 (2011), also contends that the district

court erred by increasing the length of his prison term in order to promote his rehabilitation. The

government agrees, as do we. In Tapia, which the Supreme Court issued three months after Tucker

filed his appeal, the Court held that 18 U.S.C. § 3582(a) “precludes sentencing courts from imposing

or lengthening a prison term to promote an offender’s rehabilitation.” 131 S. Ct. at 2391. The Court

then remanded Tapia’s case for resentencing because the sentencing court’s statement of reasons

suggested that it “may have selected the length of the sentence to ensure that Tapia could complete

the 500 Hour Drug Program.” Id. at 2392.


       The following passage from the district court’s statement of reasons raises the possibility that

the district court selected Tucker’s sentence in part based on the reasons held impermissible in Tapia.


       It is not evident that you are a violent or . . . drug-dealing or gun-wielding person. But
       by the same token, criminal history, we have 13 pages of material here and, candidly,
       I think it’s up to the Court at this point to put an end to this and put you in a position
       where you can get some help and some treatment, and my sentence will be designed
       to do that.


       For these reasons, we VACATE the district court’s sentence and REMAND the case for

resentencing in light of Tapia.




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