                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 10-5150


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

KYLE MATTHEW MCDONALD,

                 Defendant – Appellant,

     and

M.J. WOODS,

                 Party-in-Interest.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:10-cr-00029-JCC-1)


Submitted:    August 18, 2011                 Decided:   August 30, 2011


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James S. Abrenio, Peter D. Greenspun, GREENSPUN, SHAPIRO,
DAVIS & LEARY, P.C., Fairfax, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Morris R. Parker, Jr.,
Assistant   United   States   Attorney,   Alexandria,   Virginia,   for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Kyle     Matthew       McDonald         appeals       his    conviction     and

thirty-month       sentence       for    two       counts    of    making       threatening

communications in violation of 18 U.S.C. § 875(c) (2006).                                 He

argues on appeal that the district court erred in granting the

Government’s        motion        to      quash        certain          subpoenas,      that

insufficient       evidence        supported         his    convictions,         that   the

district    court         erred     in       denying        certain       proposed      jury

instructions,       and     that       the     court       imposed      an     unreasonable

sentence.    Finding no error, we affirm.

            McDonald’s            conviction           stemmed          from      telephone

conversations he had with family members while serving a jail

term for repeated violations of a protective order.                               McDonald,

had been convicted of stalking in Virginia court for his conduct

toward his former girlfriend, Laura Chavez.                          In recorded phone

calls to his father, mother, and sister, he stated his intent to

harm or kill Chavez.              He said, for example, that “[Chavez] is

right now on my death list. . . . The first thing I’m [doing]

when I get out of here is going after her.”                          He further stated

“I will mow people down. . . . Any one around her is going down

. . . I walk into her party, I’m taking out everyone at the

party.”     Later, he told his father “I’m killing the b****.                             I

have offered so many good solutions and she . . . needs to admit

she did something wrong.”               When he was warned by his father that

                                               3
he could get fifteen years of prison time for his statements,

McDonald responded, saying “fine, if I get fifteen more years,

when she has eight-year-old kids or nine-year-old kids and I

kill them too.      So what.”

            A jury convicted McDonald of making interstate threats

and he ultimately received a thirty-month sentence.                 This appeal

followed.



                     I.     Motion to Quash Subpoenas

            Prior to trial, McDonald filed subpoenas duces tecum

commanding Arlington County, Virginia, Detective M.J. Woods to

produce “any and all records, notes, files, memorandum and/or

documents in any form . . . regarding Kyle Mathew McDonald.”                   He

similarly filed a subpoena seeking the same information from the

Arlington County Witness/Victim Office.               The Government moved to

quash both and the court granted the motion.

            To compel production, the Supreme Court has required

that    subpoenas   cover    (1)     relevant    evidentiary       materials   or

documents; (2) that are not otherwise procurable by exercise of

due    diligence;   (3)   without     which     the   party   cannot      properly

prepare for trial; and (4) which is not intended as a fishing

expedition.      United     States    v.    Nixon,    418   U.S.   683,    699-700

(1974).     Stated more simply, Nixon requires that a party seeking

pretrial production of documents demonstrate (1) relevancy, (2)

                                        4
admissibility,          and    (3)      specificity          with        respect     to    the

documents.        In    re    Martin       Marietta       Corp.,    856    F.2d     619,   621

(4th Cir. 1988).             Additionally,         Rule    17    subpoenas        are   not   a

substitute for discovery.               As the Supreme Court has emphasized,

“[i]t was not intended by Rule 16 to give a limited right of

discovery, and then by Rule 17 to give a right of discovery in

the broadest terms.”              Bowman Dairy Co. v. United States, 341

U.S. 214, 220 (1951); see Nixon, 418 U.S. at 698.

            We have reviewed the subpoenas in this case, and we

easily conclude that they are overbroad and unspecific.                                    The

district     court      properly       found       that    McDonald        was     using   the

subpoenas to engage in a fishing expedition, and we find no

error in the court’s granting of the motion to quash.



                        II.    Sufficiency of the Evidence

            McDonald          next    argues        that    the      evidence       was    not

sufficient to convict him of making true threats.                            We review de

novo challenges to the sufficiency of the evidence supporting a

jury   verdict.          United      States        v.   Kelly,      510    F.3d     433,   440

(4th Cir. 2007).             “A defendant challenging the sufficiency of

the evidence faces a heavy burden.”                        United States v. Foster,

507 F.3d 233, 245 (4th Cir. 2007).                      We review a sufficiency of

the    evidence    challenge          by    determining         whether,      viewing      the

evidence   in     the    light       most   favorable       to     the    government,      any

                                               5
rational trier of fact could find the essential elements of the

crime beyond a reasonable doubt.                United States v. Collins, 412

F.3d   515,    519   (4th Cir. 2005).            We    review        both     direct   and

circumstantial       evidence,       and        accord     the         government      all

reasonable inferences from the facts shown to those sought to be

established.         United     States     v.    Harvey,       532     F.3d    326,    333

(4th Cir. 2008).        In reviewing for sufficiency of the evidence,

we do not review the credibility of the witnesses, and assume

that the jury resolved all contradictions in the testimony in

favor of the government.             Kelly, 510 F.3d at 440.                     We will

uphold the jury’s verdict if substantial evidence supports it,

and will reverse only in those rare cases of clear failure by

the prosecution.        Foster, 507 F.3d at 244-45.

              In order to prove a violation of 18 U.S.C. § 875(c),

“the government must establish that the defendant intended to

transmit the interstate communication and that the communication

contained a true threat.”           United States v. Darby, 37 F.3d 1059,

1066 (4th Cir. 1994).           The government need not show that the

speaker    actually      intended    to        carry     out     the    threat.        See

Virginia v. Black, 538 U.S. 343, 360 (2003); Darby, 37 F.3d at

1064 n.3 (a violation of 18 U.S.C. § 875(c) is not a specific

intent    crime   and    “the    government       need     not    prove       intent   (or

ability) to carry out the threat”).



                                           6
             To determine whether a communication is a threat, the

communication      must    be   viewed      in    the    context    in    which     it    is

received.     See Watts v. United States, 394 U.S. 705, 708 (1969)

(a statement that was made in jest in the context of a public

political debate, expressly conditioned on an event that would

never happen, is not a true threat); United States v. Spruill,

118 F.3d 221, 228 (4th Cir. 1997) (when considering whether a

statement     is    a     threat,    “[c]ontext          is    important”).              The

expression must be viewed using an objective standard - that is,

whether “an ordinary, reasonable person who is familiar with the

context of the communication would interpret it as a threat of

injury.”       United       States     v.        Spring,      305   F.3d       276,      280

(4th Cir. 2002)         (internal     quotation          marks      and    alterations

omitted); * Darby, 37 F.3d at 1064.

             Here, we conclude that the jury properly found the

statements in question to be true threats.                     The statements were

not   made   in    jest,    nor     were     they       communicated      to    a     large

audience, or political in nature, or conditioned on an event

that would never happen.            Accordingly, the court properly denied

      *
       McDonald concedes that a violation of § 875(c) is not a
specific intent crime based on the laws of this circuit.
Nevertheless, he argues that this court should alter its
standard and hold that a conviction under § 875(c) requires a
showing of specific intent.    It is axiomatic that a panel of
this court may not overrule the holding of a prior panel.    See
United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005).



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McDonald’s     motions   for     judgment     of   acquittal       and    for     a    new

trial.



                          III. Jury Instructions

              Next,   McDonald    argues      that    the    court       should       have

granted his proposed jury instructions.                   He first claims that

the court should have instructed the jury that, if found not

guilty by reason of insanity, he would be committed to a mental

institution for treatment until he could show that he was no

longer a danger to the public.               He also argues that the court

should have instructed the jury that making interstate threats

is a specific intent crime.

              We review jury instructions in their entirety and as

part of the whole trial to determine whether the district court

adequately instructed the jury on the elements of the offense

and the accused’s defenses.             See United States v. Bostian, 59

F.3d 474, 480 (4th Cir. 1995).                Both the decision whether to

give a jury instruction and the content of that instruction are

reviewed for abuse of discretion.             United States v. Passaro, 577

F.3d 207, 221 (4th Cir. 2009).               The denial of a requested jury

instruction is reversible error only if the proposed instruction

“(1)    was   correct;   (2)     was   not    substantially        covered      by     the

court’s charge to the jury; and (3) dealt with some point in the

trial    so    important,      that    failure       to     give    the    requested

                                         8
instruction        seriously       impaired       the     defendant’s       ability       to

conduct     his    defense.”        Id.    at     221   (internal    quotation      marks

omitted).

             With     respect       to      the     instruction       regarding          the

consequences of a verdict of not guilty by reason of insanity,

we   find    no    error.      This       court    has    never    required       such   an

instruction, and such an instruction “invites [jurors] to ponder

matters that are not within their province, distracts them from

their     factfinding        responsibilities,            and     creates     a    strong

possibility of confusion.”                Shannon v. United States, 512 U.S.

573, 579 (1994).           Indeed, there was no suggestion in the record

that the jury believed that McDonald would be set free upon a

verdict of not guilty by reason of insanity.

             Turning briefly to the instruction that a violation of

§ 875(c) is a specific intent crime, McDonald acknowledges that

his claim lacks support in the law of this circuit.                          A panel of

this court may not overrule the holding of a prior panel.                                See

Collins, 415 F.3d at 311.            His claim therefore lacks merit.



                                   IV.     Sentencing

             McDonald claims sentencing error in three respects: he

argues      he    should    have    received        a    downward    adjustment          for

accepting        responsibility;         that     he     should    have     received      a

downward departure for diminished capacity; and that he should

                                             9
have received a downward departure because his criminal history

category (IV) substantially over-represents the seriousness of

his criminal history.

           A    sentence   is   reviewed   for    reasonableness     under    an

abuse of discretion standard.         Gall v. United States, 552 U.S.

38, 51 (2007).       This review requires consideration of both the

procedural and substantive reasonableness of a sentence.                   Id.;

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

After determining whether the district court properly calculated

the defendant’s advisory Guideline Range, we must decide whether

the district court considered the 18 U.S.C. § 3553(a) (2006)

factors, analyzed the arguments presented by the parties, and

sufficiently explained the selected sentence.             Lynn, 592 F.3d at

575-76; see United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009).     Properly    preserved    claims       of   procedural   error     are

subject to harmless error review.            Lynn, 592 F.3d at 576.           If

the sentence is free of significant procedural error, we review

the substantive reasonableness of the sentence.                   Id. at 575;

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

           Initially, we conclude McDonald is not eligible for an

adjustment for accepting responsibility.              He put the Government

to its burden of proof at trial, and although he claims on

appeal   that   he   acknowledged   his    “factual”     guilt,    that    claim

lacks support in the record.         In addition to pleading insanity,

                                     10
McDonald    tried      to    show     that      his       words       were    merely       acts     of

frustration, and not truly threats.                        In other words, he did not

admit his guilt, and the adjustment is inappropriate.

            We conclude the same with respect to his requests for

a downward adjustment for diminished capacity.                                    The district

court    specifically         found      that    McDonald         poses       a   risk      to     the

public     because      the      offense        involved          a     serious          threat     of

violence.        We    decline      to    disturb         that    finding,        and      in     such

circumstances,         the       Guidelines          do     not        permit        a     downward

adjustment       for    diminished         capacity.                  See    U.S.        Sentencing

Guidelines Manual § 5K2.13 (2009).

            Finally, we conclude that the district court did not

err in denying the request for a downward departure on the basis

of   McDonald’s        criminal       history.             The    court        concluded          that

McDonald’s convictions were recent and serious.                                   Specifically,

he   was   convicted        of   stalking        and      then        had    three       subsequent

convictions for noncompliance with a restraining order.                                         While

he was serving a term of imprisonment for those offenses, he

committed    the       instant      offense.           In    these          circumstances,          we

decline to find error in the district court’s conclusion that

McDonald’s criminal history category did not over-represent the

seriousness of his criminal history.

            We     therefore        affirm       the       judgment          of   the      district

court.     We dispense with oral argument because the facts and

                                                11
legal    contentions   are   adequately    presented    in   the    materials

before   the   court   and   argument    would   not   aid   the   decisional

process.


                                                                     AFFIRMED




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