                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 19, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                        No. 08-4038
          v.                                               (D. Utah)
 THOMAS VAUGHN BARLOW,                          D.C. No. 2:07-CR-00504-TS-1

               Defendant-Appellant.



                           ORDER AND JUDGMENT *


Before HENRY, Chief Judge, McWILLIAMS and GORSUCH, Circuit Judges.



      Mr. Barlow was convicted of one count of mailing a threatening

communication to the Internal Revenue Service, in violation of 18 U.S.C. §

876(c), and one count of interfering with the administration of internal revenue

laws, in violation of 26 U.S.C. § 7212(a). At trial, the district court refused to

submit Mr. Barlow’s proposed jury instruction defining a “true threat” to the jury.

At sentencing, the district court increased Mr. Barlow’s criminal history category

from a category I to a category II, based upon a prior conviction for which he had


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
received a suspended sentence. The district judge sentenced Mr. Barlow to

twenty-one months’ imprisonment.

      Mr. Barlow now appeals on two primary issues. First, Mr. Barlow contends

that the district court erred by refusing to issue his proposed jury instruction

regarding the definition of a “true threat,” instead relying on the pattern

instruction published by the Tenth Circuit. Second, Mr. Barlow argues that the

district court committed error by placing the burden of proof as to sentencing

enhancements upon him.

      We affirm the district court’s refusal to submit Mr. Barlow’s proposed

instruction, concluding that the use of our pattern jury instruction does not

constitute an abuse of discretion. We conclude, however, that the district court

erred by assigning the burden of proving the disputed sentencing enhancement to

Mr. Barlow. Accordingly, we reverse and remand for resentencing.

I.    The district court did not abuse its discretion by refusing to issue Mr.
      Barlow’s proposed jury instruction defining a “true threat.”

      When the Fundamentalist Church of Latter Day Saints (FLDS) community

in Colorado City, Arizona, expelled Mr. Barlow, he began writing letters to

various government officials seeking the recovery of his family and property. Mr.

Barlow’s letters became increasingly violent, culminating with a July 8, 2007

certified letter to the Internal Revenue Service, stating:

      This means that if you do not answer me lawfully and take my money
      or property or in any way continue to harass me or fail to assure me of

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      my being secure in my persons, houses, papers and effects, that I’m
      justified in acts of war to balance your terrorism. Do you get it? I will
      kill any of your agents I can find. I will blow up your buildings. This
      is war.

Rec. vol. III, at 32. Mr. Barlow also sent copies of the letter to the Utah

Governor, the Attorney General, and the President of the United States.

Following a federal investigation, Mr. Barlow was charged in a two-count

indictment with one count of mailing a threatening communication to the IRS

(Count I) and one count of interfering with the administration of internal revenue

laws (Count II).

      Section 876(c) of Title 18 states:

      Whoever knowingly so deposits or causes to be delivered as aforesaid,
      any communication with or without a name or designating mark
      subscribed thereto, addressed to any other person and containing any
      threat to kidnap any person or any threat to injure the person of the
      addressee or of another, shall be fined under this title or imprisoned not
      more than five years, or both.

At trial, the district court rejected Mr. Barlow’s proposed jury instruction

characterizing a “true threat,” issuing instead the government’s proposed

instruction, which defined a true threat as a “serious statement expressing

an intention to injure any person, which under the circumstances would

cause apprehension in a reasonable person, as distinguished from political

argument, idle, or careless talk, exaggeration, or something said in a joking

matter.” Rec. vol. I, doc. 41, Instr. 19 (quoting Tenth Circuit Criminal

Pattern Jury Instructions, Instr. 2.38) (Thomson West 2005) (brackets

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removed).

       On appeal, Mr. Barlow argues that the district court’s jury instruction

defining a “true threat” was error, because it did not require the jury to make a

specific finding that the threat alleged would evoke in a reasonable recipient the

fear that the maker of the threat would carry it out. Mr. Barlow asserts that the

district court should have instead submitted his proposed instruction, which read:

       The government must prove that the defendant made a “true threat.” A
       true threat is a serious statement expressing an intention to inflict injury
       at once or in the future, as distinguished from mere political argument,
       idle or careless talk, exaggeration, or something said in a joking
       manner. A statement is a threat if it was made under such
       circumstances that a reasonable person hearing or reading the
       statement would understand it as a serious expression of intent to inflict
       injury.

Vol. I, doc. 31, at 3 (emphasis in original). Mr. Barlow’s proposed jury

instruction, he observes, is “the one adopted by the most recent edition of Modern

Federal Jury Instructions,” Aplt’s Br. at 16, and “has been accepted as a correct

statement of the law in a number of contexts.” Id. (citing cases from six different

circuits).

       “We review the district court’s decision to give a particular jury instruction

for abuse of discretion and consider the instructions as a whole de novo to

determine whether they accurately informed the jury of the governing law.”

United States v. Fria Vazquez del Mercado, 223 F.3d 1213, 1216 (10th Cir. 2000)

(quotation omitted).


                                            4
       Mr. Barlow asserts that the government’s proposed jury instruction defining

a true threat, which was adopted by the district court, “defined too generally the

apprehension a communication must arouse in its addressee to qualify as a

threat.” Aplt’s Br. at 11. Mr. Barlow’s proposed jury instruction, he contends, is

“superior” because it clarifies the “particular type of apprehension a true threat

elicits in its recipient.” Id. at 12-13.

       We discern no abuse of discretion in the district court’s refusal to give Mr.

Barlow’s proposed instruction defining a “true threat.” Although we have cited

alternative jury instructions identifying a “true threat” with approval, that does

not render the district court’s use of our pattern instruction “arbitrary, capricious,

whimsical, or manifestly unreasonable judgment.” Nalder v. W. Park Hosp., 254

F.3d 1168, 1174 (10th Cir. 2001) (quotation omitted). Moreover, examining de

novo the instructions as a whole, we conclude that they “accurately informed the

jury of the governing law.” Fria Vazquez de Mercado, 223 F.3d at 1216

(quotation omitted).

II. The district court erred in placing the burden of proof as to the sentence
enhancement upon Mr. Barlow.

       On appeal, Mr. Barlow asserts–inter alia–that the district court erred by

placing upon him the burden of proof as to his sentencing enhancement. “The

allocation of burden of proof is a legal issue subject to de novo review.” United

States v. Smith, 133 F.3d 737, 746 (10th Cir. 1997) (citation omitted).


                                           5
      Under the Guidelines, a “totally suspended” sentence warrants a one-point

addition to the defendant’s criminal history, while a “partially suspended”

sentence warrants a two-point addition. See U.S.S.G. § 4A1.1 (instructing

sentencing courts to “(a)[a]dd 3 points for each prior sentence of imprisonment

exceeding one year and one month[;] (b) [a]dd 2 points for each prior sentence of

imprisonment of at least sixty days not counted in (a)[;] (c) [a]dd 1 point for each

prior sentence not counted in (a) or (b), up to a total of 4 points for this item”).

As is well-established in this court, “the government generally has the burden of

showing facts necessary to justify the addition of criminal history points.” United

States v. Randall, 472 F.3d 763, 766 n.1 (10th Cir. 2006); see also United States

v. Torres, 182 F.3d 1156, 1162 (10th Cir. 1999) (stating that the government has

the “burden of showing whatever facts are needed to justify adding additional

criminal history points”) (quotations omitted). Yet, in addressing the prior state

court sentence, the district court stated:

      Court: That is the problem, Ms. Koch, is we don’t have anything other
      than a docket entry, which is very brief. So, you know, you are
      carrying the burden here. Other than your representations to the
      Court, what am I supposed to rely on in making that determination?

      Ms. Koch: Well, I would just ask Your Honor to look at the guideline.

Rec. vol. V, at 10 (emphasis added). Our review of the record favors Mr. Barlow.

      The Government appears to agree that the district court placed the burden

of proof as to the sentencing enhancement upon Mr. Barlow. Although it


                                             6
acknowledges that “the burden of proving relevant conduct for criminal history

purposes is, at least initially, on the government[,] it maintains that once

sufficient evidence of a prior conviction is before the district court, [t]he

defendant then has the burden of proving . . . that the prior conviction should not

be used to calculate criminal history if it was constitutionally infirm.” Torres,

182 F.3d at 1163 (internal quotations omitted).

      Here, the constitutionality of Mr. Barlow’s prior state court sentence is not

at issue. Rather the question presented is who carries the burden of proving, by a

preponderance of the evidence, that Mr. Barlow received a partially suspended

sentence for purposes of § 4A1.2. On that question our precedent is clear, and the

district court erred when it placed burden of proof upon Mr. Barlow.

      We note that Mr. Barlow’s sentence of twenty-one months would be a

permissible Guidelines sentence regardless of which criminal history category is

used: It would be in the mid-range for criminal history category I offenders (18-

24 months), and it is at the low-end for criminal history category II offenders (21-

27 months). Nonetheless, as we stated in United States v. Martinez-Jimenez,

“[u]nless the district court makes it clear during the sentencing proceeding that

the sentence would be the same under either of the applicable Guideline ranges,

we are compelled to remand for resentencing when . . . an improper Guidelines

calculation was applied.” 464 F.3d 1205, 1209 (10th Cir. 2006) (brackets

removed) (quotation omitted) (alternation in original); see also 18 U.S.C. § 3742.

                                           7
Here, the district court “did not indicate that it would have imposed an identical

sentence if [Mr Barlow’s] criminal history category was [I] instead of [II].”

Martinez-Jimenez, 464 F.3d at 1209. On the contrary, Mr. Barlow’s sentence – at

the low end of the available range – suggests the opposite. Accordingly, we must

remand the case for re-sentencing pursuant to the proper Guidelines range. Gall

v. United States, 552 U.S. 38 (2007); United States v. Huskey, 137 F.3d 283, 290

(10th Cir. 1998).

                                         ***

      The district court did not abuse its discretion by issuing our Circuit’s

pattern jury instruction as to the definition of a “true threat,” however, the district

erred when it assigned to Mr. Barlow the burden of proof as to the sentencing

enhancement. Thus, we VACATE Mr. Barlow’s sentence and REMAND for re-

resentencing consistent with this opinion.

                                               Entered for the Court,



                                               Robert H. Henry
                                               Chief Judge




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