                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4243


UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


KENNETH ROBERT GODSEY,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (1:05-00114-001)


Argued:   December 1, 2006                 Decided:   January 24, 2007


Before WILKINS, Chief Judge, WILKINSON, Circuit Judge, and Henry F.
FLOYD, United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Jonathan David Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.      Miller A.
Bushong, III, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee. ON
BRIEF: Mary Lou Newberger, Federal Public Defender, George H.
Lancaster, Jr., Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Kenneth   Robert   Godsey   appeals   his   sentence    for   mailing

threatening letters.    See 18 U.S.C.A. § 876(c) (West Supp. 2006).

Finding no error, we affirm.



                                  I.

     The act comprising the offense of conviction consisted of a

letter mailed by Godsey to Kristi Rose in November 2004 in which

Godsey threatened, in chilling terms, to come to Rose’s home at

night with his shotgun and shoot her and anyone else in her home.

He told her, “I want you to fear me,” and that his “intentions are

cruel and to kill.”     J.A. 73 (internal quotation marks omitted).

Godsey’s   misconduct   was   hardly   limited    to   his   offense    of

conviction, however.      In December 2004, Godsey mailed Mercer

County, West Virginia Prosecuting Attorney William J. Sadler a

letter in which Godsey stated that he hoped Sadler would die and

that he wanted to “bend [Sadler’s wife] over and f*** her.”         Id. at

74 (internal quotation marks omitted).           In April 2005, Godsey

mailed a letter to United States Probation Office employee Jeanne

Buckner in which he stated, “Someone like you needs to be f***ed

before they get their brains blow[n] out, raped and murdered.” Id.

(internal quotation marks omitted).        Also in April 2005, Godsey

sent Dennis Lee, Special Assistant United States Attorney for the

Western District of Virginia and Prosecuting Attorney for the


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Commonwealth of Virginia, a letter telling him, “I’m coming after

you, and I’m going to kill you.”                Id. at 75 (internal quotation

marks omitted).      In other letters to many women with whom Godsey

was not acquainted--including many government officials and public

servants--Godsey explicitly described sex acts that he wished to

engage in with them.           Godsey also left several harassing and

sexually explicit voicemails for female United States Probation

Office employees (one of whom was Buckner).

       On June 2, 2005, a federal grand jury returned a three-count

indictment      charging   Godsey     with      mailing   threatening     letters.

Godsey pleaded guilty on October 4, 2005, via a written plea

agreement, to Count One of the indictment.                 Even after pleading

guilty, Godsey continued his pattern of misconduct, attempting to

make    seven    collect   calls      to    the   Tazewell      County,   Virginia

Prosecutor’s Office and mailing a sexually explicit letter to a

woman to whom he had previously sent several other such letters.

       At sentencing, in calculating Godsey’s guideline range, the

district court used a base offense level of 12.                 See United States

Sentencing Guidelines Manual § 2A6.1(a)(1) (2005).                    Finding no

applicable      enhancements     or        reductions,    the    district    court

determined that 12 was also Godsey’s total offense level.                    This,

with Godsey’s Criminal History Category of IV, yielded a guideline

range of 21-27 months imprisonment.                 The district court then

departed upward on the basis that this range did not properly


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account for the seriousness of Godsey’s misconduct since it did not

reflect any of Godsey’s communications other than the single letter

to Rose.        See U.S.S.G. § 5K2.21, p.s.             Thus, considering the

factors       that   the   court   was       required    to   consider   under

18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), the district court

imposed a sentence of 60 months imprisonment, the maximum penalty

authorized under 18 U.S.C.A. § 876(c).           The district court did not

explicitly indicate whether it departed up to a range that included

a 60-month imprisonment term, or rather, whether it departed to

some lower range and then imposed a variance sentence.*



                                     II.

     Godsey contends that his 60-month sentence was unreasonably

long.       We disagree.

     In United States v. Booker, 543 U.S. 220, 244 (2005), the

Supreme Court held that the Sixth Amendment right to a jury trial

is violated when the district court, acting pursuant to a mandatory

guidelines system, imposes a sentence greater than the maximum

authorized by the facts found by the jury alone.               To remedy this

problem, the Court severed and excised the provisions of the



        *
       We note that, at the time of Godsey’s sentencing hearing,
 although United States v. Booker, 543 U.S. 220 (2005), had already
 been decided, the district court did not have the benefit of our
 decision in United States v. Moreland, 437 F.3d 424, 432 (4th
 Cir.), cert. denied, 126 S. Ct. 2054 (2006), which would have made
 the proper procedure clear.

                                         4
Sentencing Reform Act, see Sentencing Reform Act of 1984, Pub. L.

No. 98-473, ch. II, 98 Stat. 1987-2040 (1984) (codified as amended

at 18 U.S.C.A. §§ 3551-3742 (West 2000 & Supp. 2006) and at 28

U.S.C.A. §§ 991-998 (West 1993 & Supp. 2006)), that mandated

sentencing and appellate review in conformance with the guidelines.

See Booker, 543 U.S. at 259 (severing and excising 18 U.S.C.A.

§ 3553(b)(1) (West Supp. 2006) and 18 U.S.C.A. § 3742(e) (West 2000

& Supp. 2006)). This excision rendered the guidelines “effectively

advisory,” id. at 245, and replaced the previous standard of review

with review for reasonableness, see id. at 261.

     This court has previously described the necessary procedure

for imposing sentence under the now-advisory sentencing guidelines:

     First, the court must correctly determine, after making
     appropriate findings of fact, the applicable guideline
     range. Next, the court must determine whether a sentence
     within that range serves the factors set forth in
     § 3553(a) and, if not, select a sentence within statutory
     limits that does serve those factors. In doing so, the
     district court should first look to whether a departure
     is appropriate based on the Guidelines Manual or relevant
     case law....    If an appropriate basis for departure
     exists, the district court may depart. If the resulting
     departure range still does not serve the factors set
     forth in § 3553(a), the court may then elect to impose a
     non-guideline sentence (a “variance sentence”).       The
     district court must articulate the reasons for the
     sentence imposed, particularly explaining any departure
     or variance from the guideline range. The explanation of
     a variance sentence must be tied to the factors set forth
     in § 3553(a) and must be accompanied by findings of fact
     as necessary. The district court need not discuss each
     factor set forth in § 3553(a) in checklist fashion; it is
     enough to calculate the range accurately and explain why
     (if the sentence lies outside it) this defendant deserves
     more or less.


                                5
United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.

denied, 126 S. Ct. 2054 (2006) (citations, internal quotation

marks,     &   alterations      omitted).           We   review     a    sentence    for

reasonableness, considering “the extent to which the sentence ...

comports with the various, and sometimes competing, goals of

§ 3553(a).”      Id. at 433.

      Although     the    numerous          other    threatening         or   harassing

communications      for       which    the       district     court      found     Godsey

responsible were not part of the offense of conviction or relevant

conduct, the guidelines specifically authorize a departure based on

that conduct.      See U.S.S.G. § 5K2.21, p.s.                And, the presentence

report had not only reported the other misconduct but also observed

that “the Court may consider an upward departure” to account for

it.   J.A. 85.     Indeed, the presentence report estimated that had

Godsey been convicted of all three charged counts, his offense

level would have been 20, which, when considered with Godsey’s

Criminal History Category, would have yielded a guideline range of

51-63 months.

      In   selecting      a    term    of    60     months,   the       district    court

explicitly considered the seriousness of the offense of conviction

by noting the “aggravated nature” of Godsey’s conduct, including

the “despicable and disgusting” language that he used to ensure

that his threats and harassment achieved maximum effect on his

victims.       Id. at 54, 58.         The district court specifically noted


                                             6
that Godsey’s continued pattern of reprehensible conduct, even

after     pleading       guilty,    required     a    sentence     necessary     to

“incapacitate[ him] from further crimes of this nature” and “to

deter conduct of this nature” by Godsey and others.                     Id. at 58.

The district court also noted that the length of the sentence would

provide Godsey additional time to rehabilitate himself.

     Godsey maintains that his 60-month sentence was unreasonable

because     “the   policy     choices      of   the   Sentencing        Commission,

reinforced by Congress, were that an offense level of 12 [and a

corresponding      guideline       range   of   21-27     months   imprisonment]

adequately represents the seriousness of Godsey’s offense.” Br. of

Appellant    at    17.     This    argument     plainly   fails    to    recognize,

however, that U.S.S.G. § 5K2.21 specifically authorizes district

courts to depart upward based on dismissed and uncharged conduct

not reflected in the applicable guideline range.                    The analysis

employed by the district court here was eminently sound, and the

60-month sentence was reasonable in light of the § 3553(a) factors.



                                        III.

     Godsey also argues that the district court erred in imposing

a sentence above the range of 21-27 months without previously

providing notice of its intent to do so.              We disagree.

     Rule 32(h) of the Federal Rules of Criminal Procedure provides

that “[b]efore the court may depart from the applicable sentencing


                                           7
range on a ground not identified for departure either in the

presentence report or in a party’s prehearing submission, the court

must give the parties reasonable notice that it is contemplating

such a departure.”         Fed. R. Crim. P. 32(h) (emphasis added).                    We

have   held    that     Rule    32(h)    applies      to    variances     as   well    as

departures. See United States v. Davenport, 445 F.3d 366, 371 (4th

Cir. 2006).

       Godsey contends that the statement in the presentence report

that “the Court may consider an upward departure in sentencing to

consider the seriousness of underlying charges that are dismissed

pursuant     to   the    plea   agreement      that    did    not    enter     into    the

determination of the applicable guideline range” did not satisfy

Rule 32(h) because it did not constitute a recommendation that the

district      court     actually   depart.         J.A.      85   (emphasis      added).

Godsey’s reasoning is misplaced.                 The role of the presentence

report is not to decide on which bases, if any, the district court

should depart, but rather, merely to “identify any basis for

departing.”       Fed. R. Crim. P. 32(d)(1)(E).               Fulfilling this role

adequately places the defendant on notice of the bases on which the

district court may depart.              See Burns v. United States, 501 U.S.

129,   137    (1991)     (explaining      that   the       purpose   of   Rule    32    is

“promoting focused, adversarial resolution of the legal and factual

issues relevant to fixing Guidelines sentences”).                          No further

notice is required.


                                           8
                           IV.

    In sum, for the foregoing reasons, Godsey’s sentence is

affirmed.


                                                   AFFIRMED




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