                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-27-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4763




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                                                  NOT PRECEDENTIAL




            IN THE UNITED STATES COURT
                     OF APPEALS
                FOR THE THIRD CIRCUIT


                        NO. 04-4763


              UNITED STATES OF AMERICA

                             v.

                ROBERT RAY REICHARD,
                      Appellant




       On Appeal From the United States District Court
          For the Western District of Pennsylvania
           (D.C. Crim. Action No. 03-cr-00042)
          District Judge: Hon. Sean J. McLaughlin


       Submitted Pursuant to Third Circuit LAR 34.1(a)
                      October 19, 2005

BEFORE: SMITH, STAPLETON and NYGAARD, Circuit Judges

             (Opinion Filed: October 27, 2005)




                OPINION OF THE COURT
STAPLETON, Circuit Judge:

       In the spring of 2003, defendant-appellant Robert Ray Reichard (“Reichard”)

began a two-week romantic affair with Teresa Lovin (“Lovin”). After the affair, Lovin

resumed a relationship with Raymond Kotomski (“Kotomski”). Reichard began to send

threatening letters anonymously to Lovin and Kotomski. In October 2002, he entered

Kotomski’s house and took several items, including personal papers belonging to Lovin.

He also spray painted the words “Get out Bitch” on the side of Lovin’s car.

       In November 2003, Reichard mailed a suspicious package to Kotomski. Kotomski

did not open the package and took it to the state police barracks. The Erie, Pennsylvania,

bomb squad x-rayed the package, concluded it contained a dangerous device, and

disarmed it using a water cannon.

       Kotomski informed the police that he and Lovin had been receiving threatening

anonymous communications. When confronted, Reichard confessed to mailing the

package to Kotomski. He explained to the police how he made the device in the package

and how he left the package in a mailbox in Hubbard, Pennsylvania, addressed to

Kotomski. The package consisted of a mousetrap, a series of matches, a match strike

plate, explosive powder, and a string that protruded from the package. The contents were

arranged such that if the string were disrupted by the opening of the package, it would

release the mousetrap, causing the matches to strike the plate, and thereby igniting the

powder.



                                             2
       Reichard pled guilty to one count of manufacturing a “firearm” in violation of 26

U.S.C. § 5861. Pursuant to the plea agreement, the parties stipulated to application of the

United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). The parties agreed

that “[t]he facts relevant to sentencing shall be determined initially by the United States

Probation Office and finally by the United States District Court.” App. at 72. The parties

also agreed as follows with respect to application of the Guidelines:

       2. The parties stipulate that pursuant to 18 U.S.S.G. § 2K2.1(a)(5), the base
       offense level for the defendant's conduct is 18. Pursuant to U.S.S.G. §
       2K2.1(b)(3), the parties stipulate that the offense level is increased by 2
       levels to 20 because the offense involved a destructive device. The parties
       further stipulate that pursuant to U.S.S.G. § 2K2.1(b)(5), the offense level is
       further increased 4 levels to level 24 because the defendant used and
       possessed the destructive device in connection with another felony offense.
       ...

       4. [sic] The parties retain their right to advocate their position with respect
       to any upward or downward departure that may be appropriate at the time of
       sentencing.

App. at 74-75.

       The defendant's base offense level is determined by reference to § 2K2.1(a)(5) of

the Guidelines. That section, entitled “Unlawful Receipt, Possession, or Transportation

of Firearms or Ammunition; Prohibited Transactions Involving Firearms or

Ammunition,” provides an offense level of 18 if the offense “involved a firearm

described in 26 U.S.C. § 5845(a).” The PSR and plea agreement specified that a two-

level enhancement applied because the particular “firearm” manufactured was a

“destructive device.” U.S.S.G. § 2K2.1(b)(3). In addition, a four-level enhancement

                                              3
applied because the defendant possessed a “firearm” in connection with another felony

offense; namely, the defendant’s harassment, stalking, and sending of threatening

communications to Kotomski and Lovin. U.S.S.G. § 2K2.1(b)(5).

       The PSR and plea agreement also provided for Reichard’s offense level to be

reduced by two levels due to acceptance of responsibility and another level due to

Reichard’s timely notification of the authorities of his intention to enter a plea of guilty.

U.S.S.G. § 3E1.1(a) and (b). Therefore, Reichard’s adjusted offense level was 21.

Because Reichard’s criminal history category was I, this resulted in a Guidelines range of

37 to 46 months in prison. These calculations were not in dispute at sentencing and are

not in dispute on appeal.

       The government moved for an upward departure. The government argued that

Reichard’s case was outside the heartland of cases contemplated by the Guidelines in §

2K2.1 for three reasons: 1) Reichard actually used the device; 2) Reichard intended to use

the device to carry out his threat to the victim; 3) by placement in the mail, Reichard's

device posed a significant risk of serious bodily injury to others. Reichard responded that

the Guidelines already accounted for these facts.

       The District Court accepted the government’s argument and granted its motion. In

the course of concluding that Reichard’s case was outside the heartland, it noted the

following:

       •      “[T]he device itself was fully capable of inflicting serious bodily injury or
              harm.” App. at 310.

                                               4
       •      “[T]he actual mailing of this device followed a long period of harassment
              and st[al]king of the victim.” Id. at 310-11.

       •      “[T]he defendant lost all control of the destructive device once he placed it
              in the mail. This is not a situation, in my view, like a firearm where the
              perpetrator can decide at any instant whether or not he will pull the trigger.
              Here, in short, I find that the evidence reveals that the defendant
              intentionally played Russian roulette with the health and safety of any
              member of the public that came in contact with the package. And the
              evidence here shows that there were many.” Id. at 311.

       •      “[T]he destructive device manufactured by the defendant was more than
              capable of having been triggered inadvertently at any number of points on
              its long journey from having been dropped off in the mailbox to its ultimate
              designation.” Id.

       •      “[T]he statistical evidence put forward at this hearing demonstrates
              conclusively that the placing of incendiary devices, such as the device that
              was placed in the mail in this case, in the entire United States is an
              extremely rare occurrence and, in fact, in some years there is no record of it
              having occurred at all.” Id. at 311-12.

       The District Court looked to analogous Guideline provisions to determine the

appropriate extent of departure and concluded that an increase of four offense levels was

appropriate. After the four-level increase, Reichard was left with a total offense level of

25, which along with a criminal history category of I, resulted in a guideline range of 57

to 71 months. The District Court sentenced Reichard to 60 months in prison.

       In this timely appeal, Reichard challenges only the District Court’s decision to

depart upward and its determination of the extent of the departure.

       The parties agree that we review the District Court’s decision with respect to the

extent of the departure for an abuse of discretion. They differ on whether we must review



                                             5
the decision to depart de novo or for an abuse of discretion. We need not resolve this

controversy, however, because we conclude that the departure decision must be sustained

under either standard.

       Reichard insists that the District Court erred when it departed upwards because the

factors supporting the departure were already accounted for in the Guidelines calculation.

We are unpersuaded. As this Court explained in United States v. Iannone, 184 F.3d 214,

226 (3d Cir. 1999):

       The Commission conceives of each offense guideline as “carving out a
       ‘heartland,’ a set of typical cases embodying the conduct that each guideline
       describes.” In the unusual case in which a defendant's conduct falls outside
       the typical ‘heartland,’ the court may consider a departure from the
       Guidelines sentence. Section 5K2.0 provides that a court may impose a
       sentence outside the applicable guideline range “if the court finds ‘that there
       exists an aggravating or mitigating circumstance of a kind, or to a degree,
       not adequately taken into consideration by the Sentencing Commission in
       formulating the guidelines that should result in a sentence different from
       that described.’”

Id. at 226 (citations omitted).

       The Supreme Court in Koon v. United States, 518 U.S. 81 (1996), specified a

methodology courts should follow in evaluating whether a departure is appropriate. This

court explained that methodology in Iannone:

       First, identify the factor or factors that potentially take the case outside the
       Guidelines’ “heartland” and make it special or unusual. Second, determine
       whether the Guidelines forbid departures based on the factor, encourage
       departures based on the factor, or do not mention the factor at all. Third,
       apply the appropriate rule: (1) if the factor is forbidden, the court cannot use
       it as a basis for departure; (2) if the factor is encouraged, the court is
       authorized to depart if the applicable guideline does not already take it into

                                              6
       account; (3) if the factor is discouraged, or encouraged but already taken
       into account by the applicable guideline, the court should depart only if the
       factor is present to an exceptional degree, or in some other way makes the
       case different from the ordinary case in which the factor is present; or (4) if
       the factor is unmentioned, “the court must, after considering the structure
       and theory of both relevant individual guidelines and the Guidelines taken
       as a whole, decide whether [the factor] is sufficient to take the case out of
       the Guideline’s heartland.”

184 F.3d at 226 (citations and footnote omitted).

       Reichard pled guilty to making a “firearm” in violation of 26 U.S.C. § 5861(a)

through (l). The U.S.S.G. section applicable to that offense is § 2K2.1. That section

applies only to criminal activities involving the making, importing, possessing, selling,

transferring and theft, etc., of firearms under specified circumstances. U.S.S.G. App. A.

Reichard’s base offense level of 24 thus takes into account the fact that Reichard made a

firearm, the fact that that firearm was a destructive device (i.e., a bomb), and the fact that

he made and possessed that device in connection with a felony; namely, the harassment,

threatening and stalking of Lovin and Kotomski. It does not take into account what

Reichard did once he had manufactured the bomb; namely, place the bomb in the mail in

a manner that (a) was designed to place it directly into the hands of the intended victim,

and (b) would, during its mail transit, create a high risk of serious personal injury to many

innocent people.

       While Reichard is correct in stressing that a “destructive device” by definition is

capable of causing bodily injury, there is a material difference between creating such a

device and, after creating it, actually employing it in a manner that will create a

                                              7
substantial risk of serious bodily injury not only to the intended victim but to countless

others as well.

       The Guidelines encourage departure in situations of this kind. First, § 5K2.14

provides:

       If national security, public health, or safety was significantly endangered,
       the court may depart upward to reflect the nature and circumstances of the
       offense.

U.S.S.G. § 5K2.14. In addition, Application Note 5 to section 1B1.3 provides:

       In a case in which creation of risk is not adequately taken into account by
       the applicable offense guideline, an upward departure may be warranted.

U.S.S.G. § 1B1.3, Application Note 5. Finally, and most importantly, the commentary to

the Guideline under which Reichard was sentenced, §2K2.1, provides:

       Offenses involving [destructive] devices cover a wide range of offense
       conduct and involve different degrees of risk to the public welfare
       depending on the type of destructive device involved and the location or
       manner in which that destructive device was possessed or transported. For
       example, a pipe bomb in a populated train station creates a substantially
       greater risk to the public welfare, and a substantially greater risk of death or
       serious bodily injury, than an incendiary device in an isolated area. In a
       case in which the cumulative result of the increased base offense level and
       the enhancement under subsection (b)(3) does not adequately capture the
       seriousness of the offense because of the type of destructive device
       involved, the risk to the public welfare, or the risk of death or serious bodily
       injury that the destructive device created, an upward departure may be
       warranted.

U.S.S.G. § 2K2.1, Application Note 8 (emphasis added).1

   1
    Reichard also argues that this basis for departure is unsupported by the record. He
relies on a witness for the government who testified that the string on the outside of the
package would have to be cut in order for the device to detonate. Reichard emphasizes

                                              8
       In short, the fact that the device was dangerous, in and of itself, does not justify

departure because the dangerousness of the device was already accounted for by the two-

level enhancement for use of a “destructive device.” But the factor nonetheless informs

the analysis of the creation of a risk of harm for the general public. The creation of a

substantial risk of serious bodily injury to the general public was not adequately

accounted for in the Guidelines and justifies an upwards departure.

       We further conclude that the District Court did not abuse its discretion when it

departed upwards four levels. As district courts are generally required to do, the District


that the witness failed to state that the cutting of the string could happen easily. But
examination of the record in context reveals that the witness testified that the string could
have been cut in transit:

       THE COURT: With your understanding as to how this device was put
       together, do you have an opinion as to whether there was any risk of
       ignition or detonation while it was in transit between its original mailing
       point and where it was intended to go?

       THE WITNESS: Yes, that would have been possible.

       THE COURT: What would be the risk and what would be the mechanism
       from that instance that, in your opinion, would have been able to trigger the
       device?

       THE WITNESS: Really would have to either be the string itself be cut
       somewhere in transport or where the string attaches to the bale, where it
       was holding it back the bale. Either way the mousetrap had to spring
       forward.

App. at 200-01. It was not clear error for the District Court to infer from this and other
testimony that there was a substantial risk of harm to the general public that came into the
vicinity of the package as it made its way through the postal system.


                                              9
Court analogized to existing Guideline provisions in determining the appropriate extent of

its departure. See Iannone, 184 F.3d at 229. The Court looked to three provisions it

viewed as analogous. First, the Court observed that under § 3C1.2, an adjustment

applicable to a wide variety of offenses, if the defendant “recklessly created a substantial

risk of death or serious bodily injury to another person in the course of fleeing from a law

enforcement officer,” the Court should increase the offense level by two levels. U.S.S.G.

§ 3C1.2. Second, the Court observed that the Guidelines provision governing stalking

and domestic violence offenses calls for a four-level increase in offense level if the

offense involved both “possession, or threatened use, of a dangerous weapon” and “a

pattern of activity involving stalking, threatening, harassing, or assaulting” the victim.

U.S.S.G. § 2A6.2. Finally, the Court considered that the Guidelines provision governing

robbery requires a six-level increase in offense level if a firearm is used, but not

discharged, in the course of an offense. U.S.S.G. § 2B3.1(b)(2). The three analogous

provisions call for enhancements of two to six offense levels; the Court chose the middle

of that range and enhanced Reichard’s offense level by four.

       While §§ 2A6.2 and 2B3.1(b)(2) are not a close fit, they are at least analogous to

the extent they are designed to punish defendants whose conduct creates a greater risk of

harm to others. The robbery provision implicates that concern because it raises the

offense level for mere use of a firearm, even if the firearm is not discharged. The stalking

enhancement is similarly relevant in that it addresses the concomitant increase in risk to



                                              10
others that stems from the mere prospect of use of a weapon in concert with stalking or

harassment. The two-level enhancement under § 3C1.2 for creation of a risk to others in

the course of fleeing a law enforcement officer is more clearly analogous because it

squarely addresses Reichard’s creation of a risk to others.2

       In addition to the Guideline provisions cited by the District Court, we may look to

other provisions to justify the extent of the departure. In Iannone, this Court supplied its

own analogous Guidelines provision to justify the extent of the District Court’s departure

because the District Court had failed to articulate analogous Guidelines provisions at

sentencing. 184 F.3d at 229.

       The government points to § 2D1.1(b)(6)(B), which calls for a three-level increase

in offense level when a methamphetamine defendant’s offense “created a substantial risk

of harm to . . . human life.” In addition, the government cites to § 2K1.4, which provides

a base offense level of 24 for arson offenses in which the defendant knowingly “created a

substantial risk of death or seriously bodily injury to any person other than a participant in

the offense,” but an offense level of 20 for arson offenses in which the defendant

unknowingly “created a substantial risk of death or serious bodily injury to any person

other than a participant in the offense.” U.S.S.G. §§ 2K1.4(a)(1) and (2). We agree with

the government that these are helpful analogies.

   2
    Reichard argues that the provision is not analogous because “there was no flight–not
from a law enforcement officer or any one else.” Br. Appellant at 36. But this misses the
point. The District Court did not apply this enhancement directly to Reichard, but
invoked it by analogy because it concerns the creation of a risk to others.

                                             11
       Thus, the analogous Guidelines provisions show increases in offense level between

two and six when the defendant’s conduct increases the risk of harm to others. The

District Court increased Reichard’s offense level by four levels. This was within its

discretion.

       The judgment of the District Court will be affirmed.




                                            12
