                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-3649
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Northern
                                        * District of Iowa.
Kyle Amsden,                            *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 15, 2000

                                  Filed: May 24, 2000
                                   ___________

Before McMILLIAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      While Kyle Amsden was serving time in state prison on assault and burglary
convictions, he wrote to the victim of those crimes, threatening her with bodily harm
and threatening her minor daughter with sexual assault. He later wrote to another
woman, threatening her, her mother, her minor sister, and her minor daughter. Based
on these letters, Mr. Amsden pleaded guilty to two counts of mailing threatening
communications in violation of 18 U.S.C. § 876 and was sentenced to 120 months'
imprisonment. Mr. Amsden appeals his sentence.
                                            I.
       Mr. Amsden's base offense level under the federal sentencing guidelines was 12,
see U.S.S.G. § 2A6.1.1 The district court applied two two-level increases to the first
count because Mr. Amsden obstructed justice, see U.S.S.G. § 3C1.1, and because the
recipient of the first letter was a vulnerable victim, see U.S.S.G. § 3A1.1(b), which
brought the offense level to 16. The district court declined to give Mr. Amsden a two-
level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1. The court then
applied a two-level increase based on the additional count, see U.S.S.G. § 3D1.4. Thus
the adjusted combined offense level for Mr. Amsden was 18. After finding that
Mr. Amsden's criminal history score did not adequately reflect the likelihood that he
would commit other crimes, the court departed upward by increasing Mr. Amsden's
criminal history score from IV to V, see U.S.S.G. § 4A1.3 (policy statement), which had
the effect of increasing the applicable guidelines range. For offenses at level 18 with a
criminal history score of V, the guidelines range is 51-63 months. The court, however,
departed from that range for extreme conduct, see U.S.S.G. § 5K2.8 (policy statement),
and sentenced Mr. Amsden to 120 months (two consecutive sentences of five years),
the maximum under the statute, see 18 U.S.C. § 876.

       On appeal, Mr. Amsden challenges the increase for obstruction of justice and the
upward departure for engaging in extreme conduct. He also argues that the district court
engaged in double counting because it relied on the same post-plea conduct both to deny
him an acceptance-of-responsibility reduction and to support an increase in his criminal
history score.

      1
        Because of ex post facto concerns, the presentence report applied the guidelines
in effect at the time of the crimes, and the parties did not object. See U.S.S.G.
1B1.11(b)(1) and United States v. Behler, 14 F.3d 1264, 1271 (8th Cir. 1994), cert.
denied, 513 U.S. 960 (1994). Thus in this opinion all references to the guidelines are
to the 1995 edition.

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                                          II.
      Mr. Amsden first challenges the obstruction-of-justice increase. When reviewing
Mr. Amsden's sentence, we examine the court's factual findings for clear error and its
application of the sentencing guidelines de novo. See United States v. Hunt, 171 F.3d
1192, 1195-96 (8th Cir. 1999).

       Under the sentencing guidelines, a two-level increase in a defendant's offense
level is appropriate if the defendant "willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the ... prosecution, or sentencing
of the instant offense." See U.S.S.G. § 3C1.1. The guidelines give as an example of
qualifying behavior "threatening, intimidating, or otherwise unlawfully influencing a ...
witness, ... directly or indirectly, or attempting to do so." See id., application note 3(a);
see also id., application note 3(i), and 18 U.S.C. § 1512(b)(1), § 1512(b)(2)(A). Here,
the district court found that Mr. Amsden indirectly attempted to influence the recipient
of the first letter not to testify at his sentencing hearing by sending her a post-plea letter
in which he stated that upon his release he would sexually assault her minor daughter.

       After a careful review of the record, we are left with the definite and firm
conviction that the district court was mistaken in its determination that the letter was an
attempt to obstruct justice. It seems to us that it is far more likely that the letters in
question were actually a continuation of the illegal conduct for which Mr. Amsden was
convicted. In reaching this conclusion, we found it important that the letter did not refer,
directly or indirectly, to testimony or even to any court proceeding. It is relevant, too,
that we have discovered nothing in the record to indicate that Mr. Amsden believed that
the victim might testify at his sentencing hearing. We therefore disagree with the district
court's conclusion that the government "just barely" met its burden of establishing a
basis for an increase for obstruction of justice.




                                            -3-
                                           III.
       Mr. Amsden also contends that the district court abused its discretion by
departing upward 57 months from the guidelines range based on extreme conduct. See
U.S.S.G. § 5K2.8 (policy statement). We note, however, that "departures tend to be
related to the underlying sentencing range," see United States v. Fire Thunder, 908 F.2d
272, 274 n.1 (8th Cir. 1990), and by reversing the obstruction-of-justice increase here
we have reduced the applicable guidelines range from 51-63 months to 41-51months.
Since we cannot determine from the record the extent to which the district court's
upward departure for extreme conduct may have been based on the guidelines
sentencing range, we remand the case for resentencing. Cf. Williams v. United States,
503 U.S. 193, 202-03 (1992).

                                          IV.
       Because the issue may arise during resentencing, we address Mr. Amsden's
argument, raised for the first time on appeal, that the district court engaged in double
counting by relying on the same threatening post-plea letters both to refuse him an
acceptance-of-responsibility reduction, see U.S.S.G. § 3E1.1, and to support an increase
in his criminal history score from IV to V, see U.S.S.G. § 4A1.3 (policy statement).
"Double counting occurs when 'one part of the Guidelines is applied to increase a
defendant's punishment on account of a kind of harm that has already been fully
accounted for by [the] application of another part of the Guidelines.' " United States v.
Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997), quoting United States v. Reese, 2 F.3d
870, 895 (9th Cir. 1993), cert. denied, 510 U.S. 1094 (1994).

       We do not believe that double counting occurred here, however, because the
district court could have concluded that Mr. Amsden's letters, which included threats of
sexual assault and murder, were not "fully accounted for" solely by denying him an
acceptance-of-responsibility reduction but also supported an increase in his criminal
history score. Because we find no double counting, we need not address whether the

                                          -4-
sentencing commission, in fact, drafted the two pertinent guidelines provisions to serve
distinct purposes so that double counting would have been permissible in any event. See
Hipenbecker, 115 F.3d at 584.

                                           V.
       For the foregoing reasons, we remand this case to the district court for
resentencing consistent with this opinion.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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