                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-2675
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

PATRICK J. STEWART,
                                          Defendant-Appellant.
                         ____________
       Appeal from the United States District Court for the
       Northern District of Indiana, South Bend Division.
       No. 02 CR 93—Robert L. Miller, Jr., Chief Judge.
                         ____________
   ARGUED FEBRUARY 11, 2004—DECIDED JUNE 14, 2005
                   ____________



 Before EASTERBROOK, KANNE, and WILLIAMS, Circuit
Judges.
  KANNE, Circuit Judge. A jury convicted Patrick J.
Stewart of two counts of transmitting threatening commu-
nications. Stewart appeals his conviction, claiming that the
jury instructions given by the district court on the elements
of the offense were erroneous; he also appeals his sentence,
asserting that the district court erred in its determination
of his offense level and his criminal history category under
the federal Sentencing Guidelines. For the reasons stated
herein, we affirm Stewart’s conviction and sentence.
2                                                    No. 03-2675

                          I. History
  In the late 1980s, Patrick Stewart participated in a union
apprenticeship program in South Bend, Indiana. The union,
Sheet Metal Workers Local 20, is an affiliate of the Sheet
Metal Workers International Association (“International”),
based in Washington, D.C. In 1990, before Stewart achieved
journeyman status (which would have entitled him to a
higher pay scale and the right to work under union contracts
anywhere in the nation), he either resigned or was termi-
nated from the program.1 Disgruntled, Stewart launched an
effort that spanned from 1990 through 2002 to become
reinstated in the union and recover back wages. His crusade
included a 1997 lawsuit that was dismissed. The bulk of
Stewart’s efforts, however, consisted of an extended series of
phone calls to both Local 20 and, after 1998, to the
International.
  On August 27, 2002, an International receptionist an-
swered a phone call from Stewart at approximately 4:30 P.M.
Stewart asked to speak to the legal department, as he had
often done previously. After the receptionist informed
Stewart that the department personnel were gone for the
day, Stewart asked if they would be in the office the next
day. The receptionist replied in the affirmative. Stewart then
said, “Well, good, because after tomorrow, the place will no
longer exist,” and stated that he would “blow it up.” The next
day, Stewart called twice. The first time, he was transferred
to the legal secretary who apparently hung up. The second
time, Stewart asked the receptionist to give the legal
secretary a message. The receptionist testified: “He told me
that he had said a prayer for her and that he called out to
the living God before he was going to have someone kill her
so that the Lord could have mercy on her.”



1
  Despite submitting a letter of resignation, Stewart believes that
he was wrongfully terminated from the program. Ultimately, this
dispute is unimportant to our analysis of the case.
No. 03-2675                                                   3

  Based on these phone calls in August 2002 (and not the
earlier calls to Local 20 or others), a federal grand jury
returned a two-count indictment on September 11, 2002,
charging Stewart with knowingly transmitting in interstate
commerce a communication containing a threat to injure
the person of another. See 18 U.S.C. § 875(c) (“Whoever
transmits in interstate or foreign commerce any com-
munication containing any threat . . . to injure the person
of another, shall be fined under this title or imprisoned not
more than five years, or both.”). The jury found Stewart
guilty on both counts after a two-day trial.
   Stewart continued to exhibit bizarre behavior after the
trial. He testified at his sentencing hearing about his un-
qualified right to “communicate” with those whom he be-
lieves have wronged him and repeatedly referenced his
“unresolved labor dispute.” (Sent. Tr. at 108-09; Sent. Mem.
at 5.) Stewart also allegedly sent a threatening letter to the
occupants of his mother’s former house one day after the
verdict was returned in his trial.
  Applying the 2003 version of the Sentencing Guidelines,
the district court assigned 12 points for the base offense,
U.S.S.G. § 2A6.1(a)(1), and added 2 points each for more
than two threats, U.S.S.G. § 2A6.1(b)(2), and obstruction of
justice, U.S.S.G. § 3C1.1, for a total of 16. The district judge
departed upward 5 points based on the broad scope and
large number of victims of Stewart’s conduct prior to trial.
The judge also departed upward from a Criminal History
Category I to a Category IV based on Stewart’s conduct
during and after his trial. Based on Stewart’s offense level
of 21 and criminal history category of IV, the judge selected
a 64-month sentence from the applicable range of 57 to 71
months. The jury instructions provided by the trial judge
and the application of the Sentencing Guidelines after
Stewart’s conviction provide the basis for this appeal.
4                                                  No. 03-2675

                         II. Analysis
A. Jury Instructions
  Stewart alleges an error of law in the jury instructions,
which we review de novo. United States v. Hausmann, 345
F.3d 952, 959 (7th Cir. 2003), cert. denied, 124 S. Ct. 2412
(2004). The district court presented the three elements of 18
U.S.C. § 875(c) as follows:
    First, that the Defendant said or transmitted a commu-
    nication in interstate commerce; second, the communi-
    cation contained a threat to injure another person; and
    third, the Defendant did so knowingly.
(Tr. at 374 (emphasis added).) At trial, Stewart requested
the district court to state the third element as: “The
defendant did so knowingly and with the intent to threaten.”
Thus, Stewart asserts that the district court’s alleged
misstatement of the law constitutes reversible error.
  Essentially, Stewart argues that § 875(c) should be read
to incorporate a requirement that the defendant possess the
“specific intent” to deliver a threat.2 This contrasts with the
district court’s explanation of “knowingly,” the mental state
used in the jury instructions: “When the word knowingly is
used in these instructions, it means that the Defendant
realized what he was doing and was aware of the nature of
his conduct and did not act through ignorance or mistake or
accident.” (Tr. at 375.) Thus, the jury did not have to find
that Stewart purposefully intended his statements to be
taken as threats in order to convict him.



2
  Stewart chose to present his argument using the traditional
terminology of “specific intent” and “general intent.” He might
also have used the precisely defined terms of the Model Penal
Code, “purposefully” and “knowingly.” See, e.g., United States v.
Altier, 91 F.3d 953, 957 (7th Cir. 1996).
No. 03-2675                                                       5

  Although we have not yet considered 18 U.S.C. § 875(c) in
this context, our treatment of a similar statute, one that
criminalizes threats sent through the mail, provides ample
guidance to resolve this dispute. See 18 U.S.C. § 876(c).3
“[T]here are two essential elements to prove a violation of
18 U.S.C. § 876 . . . (1) that the defendant wrote a letter
addressed to a certain person containing a threat to injure
the person of the addressee or of another, [and] (2) that the
defendant knowingly caused the letter to be forwarded by
the United States mail.” United States v. Aman, 31 F.3d
550, 553 (7th Cir. 1994) (quoting United States v. Khorrami,
895 F.2d 1186, 1191 (7th Cir. 1990)).
  Because statutes like 18 U.S.C. §§ 875 and 876 crimi-
nalize “pure speech,” the Constitution demands that the
speech involved constitute a “true threat” and not constitu-
tionally protected speech. See Watts v. United States, 394
U.S. 705, 707 (1969). To establish a “true threat,” the gov-
ernment must prove that the statement came “in a context
or under such circumstances wherein a reasonable person
would foresee that the statement would be interpreted by
those to whom the maker communicates a statement as a
serious expression of an intention to inflict bodily harm
upon or to take the life of [another individual].” Khorrami,



3
  18 U.S.C. § 876(c) provides in relevant part: “Whoever know-
ingly [deposits in any post office or authorized depository for mail
matter, to be sent or delivered by the Postal Service according to
the direction thereon,] any communication with or without a name
or designating mark subscribed thereto, addressed to any other
person and containing any . . . threat to injure the person of the
addressee or of another, shall be fined under this title or impris-
oned not more than five years, or both.” In 2002, Congress
amended 18 U.S.C. § 876 so that each paragraph of the statute
now appears in lettered subsections, but this amendment has no
effect on the validity of the cases we rely on because the operative
language of § 876 that is relevant to this case remains unchanged.
6                                                   No. 03-2675

895 F.2d at 1192 (quoting United States v. Hoffman, 806
F.2d 703, 707 (7th Cir. 1986)) (brackets in original).
Whether the letter contains a “true threat” is an objective
inquiry. Aman, 31 F.3d at 553. In other words, guilt is not
dependent upon “what the defendant intended, but whether
the recipient could reasonably have regarded the defend-
ant’s statement as a threat.” Id. (quoting United States v.
Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990)).
  Stewart’s appeal asks us to reverse course from this
approach and hold that, in addition to uttering an objective
“true threat,” the defendant must also subjectively intend
the statement to be a threat. In assessing this argument,
we see no meaningful distinction between the text of 18
U.S.C. § 875(c) and the part of 18 U.S.C. § 876 relied on in
Khorrami and Aman. True, § 876(c) explicitly includes the
word “knowingly” (“Whoever knowingly so deposits or
causes to be delivered”) and § 875(c) is silent as to the ap-
propriate mental state (“Whoever transmits”). But we do
not see, and Stewart declines to argue, how this textual
difference should lead to a more strenuous mens rea
requirement for § 875(c).4
  The district court’s jury instructions accurately reflect the
substance of the criminal elements of 18 U.S.C. § 875(c).
Accord United States v. Whiffen, 121 F.3d 18, 21 (1st Cir.
1997) (“This approach also protects listeners from state-
ments that are reasonably interpreted as threats, even if
the speaker lacks the subjective, specific intent to threaten,
or, as would be more common, the government is unable to



4
  Instead of arguing that the text of the statute demands that the
government prove a purposeful intent to threaten, Stewart cites
a Ninth Circuit case, United States v. Twine, 853 F.2d 676 (9th
Cir. 1988), that has been called into question by subsequent case
law. We decline to adopt the Ninth Circuit’s approach to 18 U.S.C.
§ 875(c).
No. 03-2675                                                   7

prove such specific intent which, by its nature, is difficult to
demonstrate.”); United States v. Darby, 37 F.3d 1059, 1066
(4th Cir. 1994); United States v. DeAndino, 958 F.2d 146,
149-50 (6th Cir. 1992).


B. Sentencing
  Stewart also contested the district judge’s application of
the Sentencing Guidelines. Specifically, he alleged that the
district court’s upward departures for his offense level and
criminal history category were in error.
  After oral argument in this case, the Supreme Court held
that mandatory application of the Guidelines is unconstitu-
tional. United States v. Booker, 125 S. Ct. 738, 756 (2005).
As a remedy, the Court excised those statutory provisions
making the Guidelines mandatory. They are now merely
advisory; judges should use their discretion and may impose
a sentence outside the Guideline range so long as it is
“reasonable.” See id. at 756, 765-66. Stewart did not argue
that the Guidelines were unconstitutional in the district
court; on the contrary, he argued that the sentencing court
erred by not following the guidelines closely enough. As a
result, we review his sentence for plain error. See id. at 769.
   Resentencing is warranted under the plain error standard
if error “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings,” or, in other words, if it
causes a “miscarriage of justice.” See Johnson v. United
States, 520 U.S. 461, 467 (1997); United States v. Paladino,
401 F.3d 471, 481 (7th Cir. 2005) (quotation omitted). As we
stated in Paladino, a miscarriage of justice occurs when a
sentencing judge, in having thought himself bound by the
Guidelines, gives a longer sentence than he would have
given had he thought himself able to exercise discretion.
401 F.3d at 482-83.
  The sentencing judge in this case departed upward from
the guidelines. “By moving up, the judge evince[d] not only
8                                               No. 03-2675

a belief that discretion exist[ed] but also a disposition to
exercise it adversely to the accused.” United States v. Lee,
399 F.3d 864, 867 (7th Cir. 2005). It is clear that the judge
would not have given a lower sentence had the sentencing
taken place post-Booker, so there is no plain error. See id.
Stewart’s sentence is lower than the statutory maximum,
and it comports with the Booker reasonableness require-
ment. See Booker, 125 S. Ct. at 669. We affirm the sentence.


                     III. Conclusion
  Because the district court properly stated the law in the
jury instructions, we AFFIRM Stewart’s conviction. Further,
we AFFIRM his sentence because it does not constitute plain
error under Booker.




  WILLIAMS, Circuit Judge, dissenting. Because I believe
we should order a limited remand of Patrick Stewart’s
sentence pursuant to United States v. Paladino, 401 F.3d
471, 483-84 (7th Cir. 2005) to ask the sentencing judge
whether he would have given a shorter sentence had he
known the Guidelines were only advisory, I respectfully
dissent. I concur in the determination that the jury in-
structions were not erroneous.
  Although the sentencing judge departed upward, the
judge did not sentence Stewart to the high end of the ele-
vated Guidelines range. Nor did he make any statement
indicating that he would have sentenced Stewart to a
higher sentence had he known the Guidelines were merely
advisory. Thus, it is not clear that the sentencing judge
No. 03-2675                                                       9

would have given the same sentence had the sentencing
taken place post-Booker.
  Stewart was sentenced under the then-mandatory guide-
lines scheme. The sentencing judge departed upward five
levels based on his finding that Stewart threatened five
groups of persons, and he also increased Stewart’s criminal
history category from category I to category IV. In making
the decision to depart upward five levels, the district court
judge stated, after concluding that Stewart had threatened
five different groups, “I think that an increase in offense
level of one level for each of those groups is appropriate.”
  In addition, although Stewart’s history initially placed
him in criminal history category I, the district judge
invoked U.S.S.G. § 4A1.3 and placed him in category IV.
When Stewart was sentenced, § 4A1.3 stated in part:
    If reliable information indicates that the criminal his-
    tory category does not adequately reflect the serious-
    ness of the defendant’s past criminal conduct or the
    likelihood that the defendant will commit other crimes,
    the court may consider imposing a sentence departing
    from the otherwise applicable guideline range.
In explaining his decision to place Stewart in category IV,
the judge stated, “Based on the court’s experience in ap-
plying the sentencing guidelines to other offenders, the
court finds that the near certainty of future threats that
Mr. Stewart presents is (at best) akin to the risk posed by
category IV offenders.”1


1
   Stewart also contested the district court’s decision to depart
upward from criminal history category I to category IV. Although
there may have been a basis to depart, I also question whether the
district court’s “experience” alone constituted adequate justi-
fication for the extent of the departure under the then-mandatory
guidelines scheme, as it does not adequately explain why Stewart
                                                      (continued...)
10                                                  No. 03-2675

  Because Stewart did not raise a Sixth Amendment or re-
lated challenge before the district court, our review of his
Booker challenge is for plain error. The mandatory applica-
tion of the Guidelines in setting Stewart’s sentence consti-
tutes error that is plain. See United States v. White, 406
F.3d 827, 835 (7th Cir. 2005); United States v. Castillo, 406
F.3d 806, 823 (7th Cir. 2005). Furthermore, if a defendant
has been prejudiced by an illegal sentence, then allowing
that illegal sentence to stand would constitute a miscar-
riage of justice. See Paladino, 401 F.3d at 483.
  Our plain error inquiry also asks whether the district
court, operating under the discretion permitted by Booker,
might have sentenced Stewart any differently. Paladino,
401 F.3d at 483-84. The majority concludes that “[i]t is clear
that the judge would not have given a lower sentence had
the sentencing taken place post-Booker, so there is no plain
error.” Majority Op. at 8. In my view, that conclusion is not
so clear.
  The district court sentenced Stewart to 64 months’ im-
prisonment. Significantly, this term was not at the high end
of the guideline range the district court deemed applicable.
Rather, 64 months rests at the middle of the 57 to 71 month
range. Also, the district court judge did not make any
comments indicating he would have sentenced higher had
he known the Guidelines were only advisory—indeed, the
sentence was in the middle of the range, and the judge
could have sentenced higher while still remaining within
the Guideline range.




1
   (...continued)
is more similar to a category IV offender than to one in any other
category. See United States v. Angle, 315 F.3d 810, 813 (7th Cir.
2003); United States v. Tai, 994 F.2d 1204, 1214 (7th Cir. 1993).
No. 03-2675                                                 11

  The term of 64 months also does not reflect either a
statutory maximum or minimum. My colleagues note that
Stewart’s sentence is lower than the statutory maximum,
but I fail to see how the fact that a sentence is lower than
a statutory maximum supports a conclusion that the
district court would not have given a lower sentence had he
known the Guidelines were advisory. Cf. United States v.
Lee, 399 F.3d 864, 867 (7th Cir. 2005) (affirming sentence
imposed at statutory maximum, where district court judge
indicated it would have preferred to sentence higher);
Paladino, 401 F.3d at 482-83 (noting that when sentence
imposed at statutory minimum, this court can be confident
a higher sentence would not have been imposed had
sentencing judge known guidelines were advisory).
  Also, although the district court judge departed upward
from the Guideline range, both departures were tied to the
Guidelines (“an increase in offense level of one level for each
of those groups”; “the near certainty of future threats that
Mr. Stewart presents is (at best) akin to the risk posed by
category IV offenders”). As this court stated in Lee, in the
paragraph after that quoted by my colleagues:
    Sometimes district judges depart by reference to the
    Guideline range. For example, a judge may say or imply
    something like: “your crime and background are 10%
    less serious than the norm, so I am departing by two
    levels from the Guideline range.” Such a connection,
    expressed or inferred from other events, would suggest
    that additional leeway might have affected the sentence
    and would justify a remand under Paladino to learn the
    district court’s disposition.
Lee, 399 F.3d at 867. Here, the district court’s departures
were tied to the Guidelines, and Stewart’s resulting sen-
tence was thus dependent on their mandatory nature.
  In short, I do not believe we can be sure that the sentenc-
ing judge would impose the same sentence under the now-
advisory scheme, especially where the sentence was, in the
12                                                No. 03-2675

district court’s words, at “the center of the range.” (Sent. Tr.
at 132.) We recently considered and rejected an argument
that a district court’s upward departure obviates the need
for a remand, and our analysis there is instructive here:
     [The sentencing judge] raised the guidelines range . . .
     by granting an upward departure, and then sentenced
     the defendant near the top of the elevated range. But as
     we pointed out in Paladino, a sentencing decision by a
     judge who thinks herself bound by the guidelines will
     be, if the judge is conscientious, a sentence relative to
     the guidelines. The judge will compare the defendant
     with the average offender in the different guideline
     ranges, without necessarily agreeing that the ranges
     are correct. Also, with the guidelines merely advisory
     the judge can take into account mitigating factors that
     the guidelines ignored, provided that in doing so she is
     acting “reasonably.” United States v. Booker, supra, 125
     S.Ct. at 765; United States v. Paladino, supra, 401 F.3d
     at 484. We cannot be sure that [the sentencing judge]
     would again sentence Scott to 120 months, now that the
     guidelines are merely advisory.
United States v. Scott, 405 F.3d 615, 617 (7th Cir. 2005); cf.
United States v. Cunningham, 405 F.3d 497, 505 (7th Cir.
2005) (declining to grant Paladino remand where district
court departed upward, sentenced at top of elevated
guidelines range, and made comments including that the
defendant came “before the court with no substantial prior
criminal history at all, [and fell] within Criminal History
Category I . . . a factor that work[ed] greatly [to
Cunningham’s] benefit, [but that] otherwise [the court
would] be getting up to the statutory maximum in no time
at all . . . .”).
  I respectfully dissent.
No. 03-2675                                         13

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—6-14-05
