                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2008

USA v. Stubler
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5045




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                                                             NOT PRECEDENTIAL

                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                   No. 06-5045
                                  _____________

                         UNITED STATES OF AMERICA

                                          v.

                          RICHARD JAMES STUBLER,

                                          Appellant


                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                                 (No. 06-cr-00225)
                               Hon. James F. McClure

                              Argued January 9, 2008

           Before: McKEE, CHAGARES, and HARDIMAN, Circuit Judges.
                               ____________

                              (Filed: March 28, 2008)
                                   ____________

                            OPINION OF THE COURT
                                 ____________

Ronald C. Travis, Esq. (Argued)
Rieders, Travis, Humphrey, Harris, Waters & Waffenschmidt
161 West Third Street
P.O. Box 215
Williamsport, PA 17701-0000
Frederick E. Martin, Esq. (Argued)
Office of United States Attorney
240 West Third Street
Suite 316
Williamsport, PA 17701-0000

McKee, Circuit Judge

       Richard J. Stubler appeals his conviction and subsequent sentence under 18 U.S.C.

§ 115(a)(2). Those charges arose from his driving a kitchen knife into the side of his

former probation officer’s house. For the reasons that follow, we will affirm.

                                            I1 .

       The prosecution and defense agreed to have Stubler enter a conditional guilty plea

and preserve his right to argue that the conduct he would admit to did not amount to a

violation of § 115(a)(2). In addition, the government agreed to make a non-binding

recommendation that Stubler’s sentence not exceed imprisonment for one year and one

day. However, the district court refused to accept the sentencing recommendation

because the court did not believe it complied with Fed. R. Crim. Pro. 11(a)(2).

       Accordingly, Stubler waived his right to a jury trial and went to trial based on

stipulations of fact supplemented with limited testimony from an FBI agent and Stubler’s

former probation officer, Mel Hoover. The district court convicted Stubler. The advisory

guideline range for the offense, as calculated by the probation office, was 46-57 months.



       1
         Inasmuch as we write primarily for the parties who are familiar with this case, we
need not set forth the factual or procedural background except insofar as may be helpful
to our brief discussion.

                                             2
The district court granted a downward departure which reduced that range to 30-37

months imprisonment. After calculating the guideline range, the court sentenced Stubler

to 33 months imprisonment over defense counsel’s objection. This appeal followed.2

                                               I.

       Stubler argues that there is insufficient evidence to support his conviction. Thus,

our review is “particularly deferential.” United States v. Cothran, 286 F.3d 173, 175 (3d

Cir. 2002). “It is not our role to weigh the evidence or determine the credibility of the

witnesses.” Id. Rather, “[w]e . . . view the evidence in the light most favorable to the

Government and sustain the verdict if any rational juror could have found the elements of

the crime beyond a reasonable doubt.” Id.

       Stubler also challenges the calculation of his sentence. To the extent that we

review the district court’s legal rulings or interpretation of the sentencing guidelines, our

review is plenary. United States v. Lennon, 372 F.3d 535, 538 (3d Cir. 2004). However,

to the extent that the court’s selection of the appropriate offense level under the

guidelines is based upon findings of fact, the district court is entitled to deference.

Cothran, 286 F.3d 177.

                                              II.




       2
           We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.



                                               3
       18 U.S.C. § 115(a)(2), makes it a crime to “threaten[] . . . [a Federal law

enforcement officer] . . . with intent to retaliate . . . on account of the performance of

official duties . . . ”. Stubler argues that the evidence does not support his conviction

because he did not intend to retaliate against Hoover or threaten him. Rather, he claims

he made a “snap decision” to stab Hoover’s house out of frustration. He also argues that

his conduct could not have been “on account of performance of official duties” because

his term of supervision with Hoover had ended approximately eight years earlier. We can

not agree with either contention.

       Stubler’s supervised release ended in April of 1997, and all agree that Hoover was

not involved in any surveillance of Stubler’s home, nor was Hoover supervising Stubler.

Nevertheless, it is clear that Stubler was angry with “the government” and he considered

Hoover to be an agent of the government. Given our limited standard of review, that is

sufficient to support a finding beyond a reasonable doubt that Stubler thrust a knife into

Hoover’s house because Stubler believed he was under government surveillance and

either blamed Hoover, or faulted Hoover for not intervening to stop the perceived

intrusion. We believe that a reasonable fact finder could conclude that Stubler’s conduct

was therefore “on account of” Hoover’s official duties within the meaning of § 115(a)(2).

       Similarly, we must reject Stubler’s claim that he acted impulsively on a “spur of

the moment” impulse rather than out of a retaliatory motive. We realize that Stubler used

a weapon more closely associated with meatloaf than mayhem, but that does not negate



                                               4
the fact he was armed with a knife when he traveled across town to visit Hoover. That

suggests advance planning and intent. Similarly, although we see no reason to doubt

Stubler’s statements that he actually liked Hoover and would not have hurt him, Stubler

also stated that he was “angry with” Hoover and “wanted to scare him.” That is sufficient

for a reasonable fact finder to infer the required retaliatory intent.

                                              III.

       Stubler also argues that the district court erred in categorizing him as a Career

Offender under the Guidelines. The two prior reckless endangerment convictions the

court relied on appear from the sentencing transcript to be related to Stubler’s driving.

The district court concluded those convictions constituted past crimes of violence for

purposes of classifying Stubler a Career Offender. The Sentencing Guidelines define a

“crime of violence” as follows:

              (a) The term “crime of violence” means any offense under
              federal or state law punishable by imprisonment for a term
              exceeding one year, that –
              (1) has as an element the use, attempted use, or threatened use
              of physical force against the person of another, or
              (2) is burglary of a dwelling, arson, or extortion, involves use of
              explosives or otherwise involves conduct that presents a serious
              potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (emphasis added).

       While we are sympathetic to Stubler’s argument that reckless endangerment

offenses should not be considered “crimes of violence,” Stubler’s argument is foreclosed




                                               5
by our decision in United States v. Parson, 955 F.2d 858 (3d Cir. 1992).3 There, we

questioned the wisdom of the possibly inadvertent adoption of a definition for “crime of

violence” that can include offenses that do not involve the intentional use of force. Id. at

860-61, 874-75. However, neither Congress nor the Sentencing Commission has seen fit

to revise that definition.

       Moreover, Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005) and Singh v. Gonzales,

432 F.3d 533 (3d Cir. 2006) do not help Stubler. There, we had to determine what

qualified as a “crime of violence” for purposes of convictions for “aggravated” felonies

under immigration law. Our analysis was governed by 18 U.S.C. § 16(a). In 1989, the

Guidelines were revised and no longer track 18 U.S.C. § 16(a). In fact, the panel in Tran

v. Gonzales explicitly reconciled its decision with Parson, but did not overrule it.4 414

F.3d at 470 n.5.

                                            IV.

       Stubler claims the district court should have used U.S.S.G. § 2A2.3 (“Minor

Assault”) with a base offense level that does not exceed 7 rather than U.S.S.G. § 2A6.1,

(“Threatening or Harassing Communications; Hoaxes”) with a base offense level of 12.




       3
         The district court did grant a downward departure because the guideline
calculation overstated the seriousness of Stubler’s prior record.
       4
        United States v. Otero is similarly distinguishable because it addressed a different
section of the Guidelines that contains its own definition of crime of violence. 502 F.3d
331 (3d Cir. 2007).

                                              6
Appendix A lists several possible base offense sections which could apply to a violation

of § 115 including § 2A6.1. Accordingly, the court did not err in selecting § 2A6.1.

                                             V.

       Stubler next argues that the district court should not have applied a 6-level

enhancement to his base offense level pursuant to U.S.S.G. § 3A1.2 based on the victim

being a former federal employee, because Hoover’s status as a federal employee “is

counted once as an essential element of the crime of conviction and counted a second

time by application of the enhancement.” We have already rejected that argument. See

United States v. Green, 25 F.3d 206, 210 (3d Cir. 1994).

                                     CONCLUSION

       Accordingly, we conclude that the district court committed no legal error in

convicting or sentencing Stubler. Nevertheless, we feel compelled to express our concern

about the sentence imposed here. Stubler has a history of paranoid schizophrenia and all

concerned agree that he suffers from a very profound mental illness. All concerned also

agree that Stubler generally had a good relationship with Hoover, and that Stubler’s

mental illness rather than malice or a predisposition towards violence led to this

transgression.

       Neither the government nor the victim wanted Stubler to receive a sentence of

more than a year and a day, which would have been tantamount to a “time served”

sentence. We assume that all would agree that prison is not the most effective



                                             7
environment for the treatment of mental illness. Accordingly, a shorter sentence could

have allowed Stubler to receive the mental health treatment he so desperately needed. It

also would have been more consistent with the command of 18 U.S.C. § 3553(a) that

courts impose the minimum sentence necessary to comply with the sentencing objectives

that must be considered.

       The reasonableness of that sentence is not before us. Nevertheless, it is difficult

for us not to conclude that the district court could have reasonably exercised its discretion

to impose a sentence more consistent with treatment of the mental health aspects of

Stubler’s behavior rather than imposing the sentence it selected.

       Although we are not privy to all of the dynamics and factors that went into this

prosecution, it certainly appears that this entire matter could have been handled much

more appropriately by the mental health system rather than the criminal justice system.

That is, of course, “water under the bridge.” Stubler’s transgression has now been

prosecuted as a criminal matter, a criminal conviction has been obtained, and a sentence

imposed. It is indeed regrettable that state and federal authorities could not have

cooperated in a manner that would have resolved this regrettable incident in the mental

heath system where it belongs.




                                              8
