14‐1809‐cr	                                             	                                       	
United	States	v.	Christine	Wright‐Darrisaw		            	                                       	

                           UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                               August Term, 2014

                     (Argued: March 3, 2015                   Decided: March 24, 2015)

                           Docket No. 14-1809-cr
________________________________________________________________________

                                     UNITED STATES OF AMERICA,

                                                                    Appellee,

                                                     - v. -

                                    CHRISTINE WRIGHT-DARRISAW,

                                           Defendant-Appellant.
________________________________________________________________________

Before:
                 CALABRESI, HALL, AND CARNEY, Circuit Judges.

         Appeal from a judgment of the United States District Court for the Western District
of New York (Geraci, J.) convicting appellant of violating 18 U.S.C. § 871(a) for threatening
to kill the President of the United States; sentencing the defendant without applying a four-
level decrease in the offense level because the threat was found to involve deliberation;
applying a three-level increase to the offense level because appellant was found to have been
motivated by the victim’s status as a government official; and imposing a sentence of 33
months’ imprisonment. Because the Supreme Court’s decision in United States v. Elonis, 730
F.3d 321 (3d Cir. 2013), cert. granted, 134 S. Ct. 2819 (2014), may bear directly on our analysis
of whether appellant’s communication constituted a “true threat” in violation of 18 U.S.C. §
871(a), we defer consideration of appellant’s challenge to the sufficiency of the evidence
until the Supreme Court issues its decision. So that the district court may reconsider the
sentence imposed before the appellant has served the remaining balance, however, we
remand this case for further consideration of the sentence in light of our holding that the
“deliberation” to be considered under Section 2A6.1(b)(6) of the United States Sentencing
Guidelines is deliberation related to the communication of the threat itself. The District
Court should consider the defendant’s deliberation with respect to her course of conduct
leading up to her communication of the threat only if it is closely tied to the communication
of the threat.
         We defer consideration of the sufficiency of the evidence, and we vacate the sentence
and remand for further sentencing proceedings consistent with this opinion.

                                                       1	
	
14‐1809‐cr	                                                                    	                                             	
United	States	v.	Christine	Wright‐Darrisaw		                                   	                                           	



                REMANDED.


                                                                     MONICA J. RICHARDS,
                                                                          Assistant United States Attorney, for William J.
                                                                          Hochul, Jr., United States Attorney for the
                                                                          Western District of New York, Buffalo, NY, for
                                                                          Appellee United States of America.

                                                                     JEFFREY L. CICCONE,
                                                                           Assistant Federal Public Defender (Jay S.
                                                                           Ovsiovitch, Of Counsel, on the brief), Federal
                                                                           Public Defender’s Office for the Western District
                                                                           of New York, Rochester, NY, for Defendant-
                                                                           Appellant Christine Wright-Darrisaw.

HALL, Circuit Judge:

                Defendant-Appellant Christine Wright-Darrisaw appeals a judgment of conviction

for threatening to kill the President of the United States in violation of 18 U.S.C. § 871(a).

Wright-Darrisaw also appeals the procedural reasonableness of her sentence, challenging: (1)

the district court’s decision not to apply a four-level decrease in the offense level pursuant to

United States Sentencing Guidelines (U.S.S.G.) § 2A6.1(b)(6) based on the court’s

determination that the threat involved deliberation; (2) a three-level increase in her offense

level pursuant U.S.S.G. § 3A1.2(a) because Wright-Darrisaw was motivated by the victim’s

status as a government official; and (3) the district court’s calculation of the sentence

imposed on her conviction for making a false statement in violation of 18 U.S.C.

§ 1001(a)(2).1



																																																																		
1 Wright-Darrisaw does not challenge her conviction for making a false statement in
violation of 18 U.S.C. § 1001(a)(2).
                                                                              2	
	
14‐1809‐cr	                                        	                                                 	
United	States	v.	Christine	Wright‐Darrisaw		      	                                                  	

         As to Wright-Darrisaw’s challenge to her conviction for violating 18 U.S.C.

§ 871(a), we defer consideration of whether Wright-Darrisaw’s threat to kill the President

constituted a “true threat” cognizable under 18 U.S.C. § 871(a) until after the Supreme Court

has issued its decision in United States v. Elonis, 730 F.3d 321 (3d Cir. 2013), cert. granted, 134 S.

Ct. 2819 (2014). Regarding the procedural reasonableness of Wright-Darrisaw’s sentence,

for the reasons that follow we remand to the district court for further consideration of

whether Wright-Darrisaw’s threat involved the sort of deliberation contemplated under

U.S.S.G. § 2A6.1(b)(6).

    I.       BACKGROUND

    Following a jury trial, Wright-Darrisaw was found guilty of threatening the President of

the United States in violation of 18 U.S.C. § 871(a) and of making a false statement in

violation of 18 U.S.C. § 1001(a)(2). The district court imposed a sentence of 33 months’

imprisonment, rejecting Wright-Darrisaw’s request for a four-level decrease in the offense

level under U.S.S.G. § 2A6.1(b)(6) because, in the court’s view, the threat involved

deliberation. For the purposes of this opinion we address the limited issue of whether the

district court committed procedural error when it rejected Wright-Darrisaw’s request for the

four-level decrease.

             A. Convictions

    On February 24, 2012, Wright-Darrisaw called the White House Comments Line and

after two and a half minutes of communication characterized generally as “foul,”

“incoherent,” and “irrational,” stated “I’m going to f**k and kill Obama.” Christiane

Richardin, a volunteer telephone operator, transferred Wright-Darrisaw to the Secret Service


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14‐1809‐cr	                                    	                                                 	
United	States	v.	Christine	Wright‐Darrisaw		   	                                                 	

and completed an incident report. Richardin reported that Wright-Darrisaw was “angry,”

“excited,” and “loud.” The call was not recorded. The Secret Service subpoenaed phone

records and later determined that Wright-Darrisaw had called the White House Comments

Line several times prior to the call at issue. The Secret Service also determined that Wright-

Darrisaw was a resident of Rochester, New York, and subsequently transferred investigation

of the case to the Secret Service’s Rochester Office.

    During the investigation, Wright-Darrisaw admitted to calling the White House

Comments Line to voice her displeasure with child custody laws, but she denied making any

threats. Wright-Darrisaw was arrested on March 9, 2012. Following a three-day trial, a jury

found her guilty of threatening President Obama in violation of 18 U.S.C. § 871(a) and of

making a false statement to the Secret Service in violation of 18 U.S.C. § 1001(a)(2).

             B. Sentencing

    The Presentence Investigation Report (“PSR”) recommended a combined and adjusted

total offense level of 17. Wright-Darrisaw had a criminal history category of II, which, when

combined with her total offense level, resulted in a Guidelines sentencing range of 27 to 33

months.

    With respect to the Guidelines calculation, Wright-Darrisaw urged the district court: (1)

to adopt a four-level decrease in the offense level pursuant to U.S.S.G. § 2A6.1(b)(6) because

the threat did not involve deliberation; (2) to decline to apply a three-level increase in the

offense level pursuant to U.S.S.G. § 3A1.2(a) pertaining to a threat when the victim is a

government official; and (3) to adopt an unspecified decrease in the offense level to account

for Wright-Darrisaw’s history of mental health issues.


                                               4	
	
14‐1809‐cr	                                      	                                             	
United	States	v.	Christine	Wright‐Darrisaw		    	                                              	

    The district court denied Wright-Darrisaw’s request for the § 2A6.1(b)(6) four-level

decrease in the offense level, reasoning in significant part that the very act of calling the

White House Comments Line involved deliberation. The district court explained:

             Examining what happened here, this was not spontaneous. The
             ultimate verbalization of the threat may have been spontaneous, but
             there was some deliberation here. There’s deliberation by contacting
             the White House in the first place.

               ***

             Ms. Wright-Darrisaw indicated she did that only after she had a
             negative experience in Family Court; was upset regarding the custody
             of her children . . . and made a deliberate attempt to contact the
             White House to seek aid from the President specifically.

    As to the three-level increase in the offense level under § 3A1.2(a), the district court was

not moved by Wright-Darrisaw’s objection and held that her threat was directed toward

President Obama based upon his status as the President of the United States.

    When considering Wright-Darrisaw’s mental health issues, the district court found

Wright-Darrisaw’s history of threatening conduct relevant to its denial of the request for a

downward departure:

             [Your] conduct over the years has been scary . . . it includes menacing;
             possession of a box cutter; possession of a knife; one which was
             hidden in a dress on one occasion; a threat to Monroe Community
             College to blow up a bomb at that location.

               ***

             Threats against President Bush and the sheriff. Threats against a
             neighbor with a knife. A situation where windows of a car were
             smashed out. Threats against other officials. Threats to kill neighbors.
             A threat to slit the throat of a clerk at Walmart. Threats to shoot a
             cousin. And at one point there was activity where you apparently
             jumped out of a moving car, and also threatened to kill and shoot
             some neighbors.

                                                5	
	
14‐1809‐cr	                                      	                                                  	
United	States	v.	Christine	Wright‐Darrisaw		     	                                                  	

          Ultimately, after considering the seriousness of the offense, Wright-

Darrisaw’s history and character, and the need for deterrence, the district court

imposed a sentence of 33 months’ imprisonment. The court explained:

              To threaten the President of the United States puts a lot of actions in
              motion, and it should. Because we’ve seen a history [of] this over our
              lifetime where a President being shot or killed has a tremendous
              effect on our society.

               ***

              And so it’s a serious thing. The message has to go out there loud and
              clear: You can’t threaten the President of the United States and get
              away with it.

     Wright-Darrisaw is currently serving her sentence.

    II.      DISCUSSION

          We write briefly to clarify the factors to be considered when determining whether a

threat has involved the kind of deliberation that precludes a sentencing court from applying

the four-level decrease provided by U.S.S.G. § 2A6.1(b)(6) to the offense level calculation

applicable to Wright-Darrisaw’s conviction for violation of 18 U.S.C. § 871(a).

          In pertinent part, 18 U.S.C. § 871(a) provides that whoever “knowingly and

willfully . . . [makes] any threat to take the life of, to kidnap, or to inflict bodily harm upon

the President of the United States . . . shall be fined under this title or imprisoned not more

than five years, or both.” 18 U.S.C. § 871(a). “Whether words used are a true threat is

generally best left to the triers of fact.” United States v. Amor, 24 F.3d 432, 436 (2d Cir. 1994)

(citing United States v. Carrier, 672 F.2d 300, 306 (2d Cir. 1982)). When imposing a sentence

on a defendant convicted of violating § 871(a), if the court finds “the offense involved a



                                                6	
	
14‐1809‐cr	                                      	                                                 	
United	States	v.	Christine	Wright‐Darrisaw		     	                                               	

single instance evidencing little or no deliberation,” then it should decrease the offense level

by four. U.S.S.G. § 2A6.1(b)(6).

        Wright-Darrisaw argues that the district court committed procedural error by

confusing the deliberate call to the White House with the spontaneous threat made at the

end of that call. She also argues that the threat was the product of “a single impulse, or . . . a

single thoughtless response to a particular event.” United States v. Humphreys, 352 F.3d 1175,

1177 (8th Cir. 2003) (quoting United States v. Sanders, 41 F.3d 480, 484 (9th Cir. 1994)). The

government responds that Wright-Darrisaw’s history of threatening behavior, her conscious

decision to call the White House, the fact that the threat came at the end of two minutes and

thirty seconds of communication, and her deceptive conduct after the call, all support a

determination that the threat involved deliberation.

        The question before us is whether the district court erred when it determined that

Wright-Darrisaw engaged in sufficient deliberation in connection with making her threat

against the President to preclude eligibility for the four-level decrease in her offense level. In

our view, the explanation provided by the district court suggests that the court may have

been too sweeping in its consideration of what constitutes deliberation cognizable under

U.S.S.G. § 2A6.1(b)(6).         We will therefore vacate the sentence imposed and forthwith

remand this case so that the district court may reanalyze in the first instance, consistent with

the holding of this opinion, the quantum of deliberation involved in Wright-Darrisaw’s

communication of her threat.

        In considering the applicability of the four-level reduction, we find it instructive to

examine case law from our sister circuits addressing the applicability of § 2A6.1(b)(6)and its


                                                7	
	
14‐1809‐cr	                                                                   	                                       	
United	States	v.	Christine	Wright‐Darrisaw		                                  	                                   	

predecessor. In United States v. Russell, 322 F. App’x 920, 921 (11th Cir. 2009), for example,

the Eleventh Circuit affirmed a sentence denying the four-level reduction where a defendant

was arrested after calling 911 and telling the dispatcher that he was “thinking about killing

the President,” and that he “really mean[t] it.” Subsequent to the arrest, defendant also

reiterated the threat to both the police and the Secret Service. Id. at 922. Facts relevant to

the court’s determination that defendant’s threat involved deliberation sufficient to preclude

application of § 2A6.1(b)(5) 2 included that defendant stated that he was “on his way to kill

the president” and that he “had walked from Alabama [to Georgia] to do so.” Id. at 924.

The fact that defendant had actually walked from Alabama to Georgia, coupled with

defendant’s detailed explanation of his motivations underlying the threat, led the court of

appeals on review for clear error to affirm the district court’s finding of deliberation. Id. at

925.

                In United States v. Humphreys, 352 F.3d 1175, 1176 (8th Cir. 2003), the Eighth Circuit

affirmed a sentence where a defendant made several threats that “he or one of his followers

would douse President Bush with a flammable material and throw a match on him,”

determining that the repeated threats were not limited to a “single instance” as required to

support a reduction.                                            In so holding, the Eighth Circuit observed that the

reduction applies when the threat is the product of “a single impulse, or [is] a single

thoughtless response to a particular event.” Id. at 1177 (quoting United States v. Sanders, 41

F.3d 480, 484 (9th Cir. 1994)). Facts relevant to the Eighth Circuit’s conclusion included

that defendant communicated his threat “to different people on different occasions,
																																																																		
2Since the 2009 amendments to the Guidelines, the four-level decrease referenced here is
now found at § 2A6.1(b)(6).
                                                                             8	
	
14‐1809‐cr	                                      	                                                   	
United	States	v.	Christine	Wright‐Darrisaw		     	                                                   	

specifically, in [an internet] chat room, by fax to the White House, and in person to three

individuals at different times.” Id. The fact that the threat was reiterated on several

occasions and was not simply the product of a “single impulse,” supported a finding that the

defendant was not eligible for a four-level reduction under § 2A6.1(b)(5). Id.

        In United States v. Horton, 98 F.3d 313, 320 (7th Cir. 1996), the Seventh Circuit vacated

a sentence and remanded for further analysis of whether there had been deliberation when a

defendant had made a bomb threat against a federal building one day after the Oklahoma

City bombing. The circuit court held that the district court inadequately explained its

decision to infer deliberation with respect to the threat based on the timing of the threat,

defendant’s presence at the building, and the heightened security that had been put in place

because of the Oklahoma City bombing, and without explaining its choice to “dismiss

without comment” certain other evidence regarding the defendant’s pre-threat conduct or

focusing on the nature of his offense conduct. Id. at 320.

        Even in the context of a written and mailed threat—circumstances from which one

might infer a certain level of deliberation—the Ninth Circuit has commented that, “the mere

act of mailing a letter does not, in and of itself, necessarily require deliberation,” Sanders, 41

F.3d at 485 (finding deliberation nevertheless where “the circumstances of the letters

showed some planning and a clear intent to harass the target groups.”).

        Examining the language of § 2A6.1(b)(6), and the dispositions in these cases, we note

two factors that courts have considered in deciding whether to apply the four-level

reduction: (1) whether, and under what circumstances, the threat itself has been repeated and

(2) whether there is evidence of planning or some effort to carry out the threat. It is


                                                9	
	
14‐1809‐cr	                                     	                                              	
United	States	v.	Christine	Wright‐Darrisaw		    	                                              	

undisputed that the particular threat here was not repeated. The issue is therefore whether

there is sufficient evidence of planning or some effort to carry out the threat.

        We agree with the Seventh Circuit that the presence of coincidental factors (such as

heightened security unrelated in any way to the threat) are not properly considered when

determining whether there has been deliberation. Further, we find persuasive the Eighth

Circuit’s observation that the reduction offered by § 2A6.1(b)(6) should be available to a

defendant whose threat is the product of “a single impulse, or [is] a single thoughtless

response to a particular event.” Humphreys, 352 F.3d at 1177. Thus, we hold here that the

“deliberation” to be considered under § 2A6.1(b)(6) of the Sentencing Guidelines is

deliberation related to the communication of the threat itself. Only if a defendant’s course

of conduct leading up to and following the time the threat was made is closely tied to the

communication of the threat, or if the defendant makes any effort to carry out the threat,

may the conduct then provide a basis for inferring deliberation sufficient to reject the four-

level reduction.

        In this case, while Wright-Darrisaw’s decision to call the White House Comments

Line to complain about a family law matter undoubtedly involved deliberation, the threat

itself, which was delivered after two and a half minutes of communication categorized by the

operator as “incoherent,” may not have involved deliberation of the sort to which §

2A6.1(b)(6) refers. While we agree with the district court that “there’s deliberation by

contacting the White House” and “seek[ing] aid from the President specifically,” these facts

alone do not necessarily demonstrate that Wright-Darrisaw’s threat involved the sort of




                                               10	
	
14‐1809‐cr	                                                           	                              	
United	States	v.	Christine	Wright‐Darrisaw		                          	                            	

deliberation that must be present in order for the district court to decline to decrease the

offense level by four levels under § 2A6.1(b)(6) of the Guidelines.

                Accordingly, because it appears that the district court may have conflated the

deliberation involved in making the phone call to the White House with the deliberation

involved in communicating the specific threat against the President, we vacate the sentence

and remand for further consideration of whether Wright-Darrisaw is entitled to the four-

level decrease in her offense level. If the district court concludes following such further

proceedings as it deems necessary that Wright-Darrisaw’s threat was made with little or no

deliberation, then the court should resentence her accordingly. If, on the other hand, the

court concludes that there was deliberation of the sort contemplated by § 2A6.1(b)(6), then

the present sentence should be re-imposed.3 If either party intends to appeal the district

court’s sentencing decision on remand, it may inform this Court of its position and provide

supplemental briefing, which this panel would expect to consider at the time we review the

challenge to the sufficiency of the evidence.

                We have considered Wright-Darrisaw’s remaining challenges to her sentence and find

them to be without merit.

        III.            CONCLUSION

                For the foregoing reasons, we VACATE the sentence and REMAND to the district

court for the limited purpose of considering the U.S.S.G. § 2A6.1(b)(6) issue consistent with

this opinion. We defer consideration of Wright-Darrisaw’s challenge to the sufficiency of

																																																																		
3 In either case, we are confident that the district court is aware that a sentence to a term of
incarceration may not be based on Wright-Darrisaw’s rehabilitative needs. See 18 U.S.C. §
3582(a); Tapia v. United States, 131 S. Ct. 2382 (2011).
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14‐1809‐cr	                                     	                                           	
United	States	v.	Christine	Wright‐Darrisaw		    	                                           	

the evidence supporting her conviction for violation of 18 U.S.C. § 871(a) until such time as

the Supreme Court has issued its decision in Elonis.




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