                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1079
                                   ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *   Appeal from the United States
      v.                                 *   District Court for the Eastern
                                         *   District of Arkansas.
Christopher Martin Cole,                 *
                                         *
             Appellant.                  *

                                   ___________

                             Submitted: September 10, 2003

                                  Filed: February 4, 2004
                                   ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.
                         ___________

BEAM, Circuit Judge.

       Christopher Martin Cole appeals the sentence imposed following his guilty
plea to transmitting a threat in interstate commerce in violation of 18 U.S.C. § 875.
We reverse and remand for resentencing because the district court erred in departing
upward from the applicable sentencing range.
I.    BACKGROUND

       On October 16, 2001, Cole called a 911 operator in Paragould, Arkansas, and
stated, "Anthrax is in one of your schools now. Final warning." Cole was charged
with violating 18 U.S.C. § 2332a (Use of certain weapons of mass destruction).

       Pursuant to a written plea agreement, Cole pled guilty to transmitting a threat
in interstate commerce in violation of 18 U.S.C. § 875. The plea agreement, while
reiterating that the district court was not bound thereby, stipulated that United States
Sentencing Guideline (U.S.S.G.) § 2A6.1 (2002) applied, that the base offense level
was twelve under U.S.S.G. § 2A6.1(a)(1), that none of the offense characteristics set
forth in U.S.S.G. § 2A6.1(b)(1) through (4) were present, and that Cole was entitled
to a two-level reduction for acceptance of responsibility.

       The United States Probation Office completed a presentence investigation and
prepared a Presentence Report (PSR). The PSR contained various facts about Cole
and his offense, only a few of which are relevant here. First, the PSR stated that
police officers were dispatched to the local post office and school to intercept the
incoming mail in response to Cole's call. Second, the PSR identified two factors that
justified an upward departure under U.S.S.G. § 5K2.0 because they had not been
taken into account by the applicable guideline: (1) the timing of the offense and (2)
additional calls made by Cole to 911 shortly before and after October 16, 2001. Cole
objected to the second ground and the government introduced no evidence at
sentencing to establish that he made any other calls.

     Before sentencing, Cole moved for a downward departure and the government
moved for an upward departure.             The government reiterated the PSR's
recommendations and presented two additional grounds for departure under U.S.S.G.
§ 5K2.0. Specifically, it argued that the encouraged factors contained in U.S.S.G. §



                                          -2-
5K2.7 (Disruption of Governmental Function) and U.S.S.G. § 5K2.14 (Public
Welfare) justified a departure.

       At the sentencing hearing, Cole produced one expert witness in support of his
downward-departure motion. This witness testified about Cole's psychiatric
condition.1 During Cole's examination of the witness, the court intervened and asked
the witness about Cole's proclivity to make similar threats if not incarcerated. Cole's
witness stated he could not reliably answer the question, but "would like to believe
that he would not make that same kind of threat again." Sentencing Transcript at 18.
The government produced no witnesses.

       The district court applied U.S.S.G. § 2A6.1(a) and found Cole's base offense
level was twelve. It then decreased the offense level to ten under U.S.S.G. § 3E1.1(a)
for Cole's acceptance of responsibility. Next, it determined Cole had zero criminal
history points and accordingly calculated Cole's criminal history category as one (I).
With these values, the guidelines allowed a period of incarceration from six to twelve
months. The district court departed upward from the applicable guideline range and
imposed a sentence of twenty-four months followed by supervised release. The
nearest offense level that allows such a period of incarceration with a criminal history
category of one is level fifteen. Thus, the district court departed upward five levels.
The court stated that its decision to depart was warranted by the factors set forth in
the PSR and by the government. In addition, the court stated it was concerned about
the possibility of future threats and thought a twenty-four month sentence would
allow Cole the opportunity to receive residential substance abuse treatment.
Sentencing Transcript at 49-50.




      1
       Cole's argument for downward departure was based upon his low intelligence
quotient as found by psychiatric testing—bordering on mental retardation. Cole does
not challenge the denial of his motion for a downward departure.

                                          -3-
       Cole then moved for a sentence correction. In an order denying the motion, the
district court stated, "I did not rely upon pending charges, nor upon other threatening
phone calls in deciding to depart upward. I departed upward because I think the
severity of this particular case and the circumstances existing at the time of the
anthrax threat, moved the case outside of the 'heartland' of the applicable guidelines.
As a part of this consideration, there was a significant disruption of the school
operation, and the anthrax call constituted a significant threat to public health and
safety." Cole appeals the district court's upward departure.

II.   DISCUSSION

      Under 18 U.S.C. § 3742(e), as amended by the PROTECT Act, "we review de
novo the application of the guidelines to the facts and review the district court's
factual findings for clear error." United States v. Willey, 350 F.3d 736, 738 (8th Cir.
2003); accord United States v. Gonzalez-Ortega, 346 F.3d 800, 801-02 (8th Cir.
2003). We apply this standard of review even though Cole was sentenced before the
amendments took effect. Willey, 350 F.3d at 738-39; Gonzalez-Ortega, 346 F.3d at
802.

       Under 18 U.S.C. § 3553(b), a court may depart upward if it "finds that there
exists an aggravating . . . circumstance of a kind, or to a degree, not adequately taken
into consideration" by the applicable guideline. Section 5K2.02 of the guidelines
refines this statutorily created authority by allowing departures based on
circumstances identified in Chapter Five, Part K, Subpart 2 (i.e., encouraged factors)
and unidentified circumstances that may warrant a departure. U.S.S.G. § 5K2.0(a)(2).

      2
        Section 5K2.0 has been amended since Cole was sentenced. These 2003
amendments did not change the substance of the provision for our purposes, but they
did restructure U.S.S.G. § 5K2.0 to a more logical subdivided format. We provide
citations here to the 2003 version for the sake of clarity. Where the 2002 version is
cited, it is indicated parenthetically.

                                          -4-
Additionally, if the guidelines already take a particular circumstance into
consideration, the presence of that circumstance "to a degree substantially in excess
of . . . that which ordinarily is involved in that kind of offense" may justify a
departure. U.S.S.G. § 5K2.0(a)(3).

      A "'departure must be based on factual findings supported by the record.'"
United States v. Bougie, 279 F.3d 648, 650 (8th Cir. 2002) (quoting United States v.
Fawbush, 946 F.2d 584, 586 (8th Cir. 1991)). A court may regard as true facts
contained in a PSR to which no specific objection is made. Id.; United States v.
Munoz, 324 F.3d 987, 992 (8th Cir. 2003).

       At sentencing, the district court identified the grounds for departure as both the
PSR's recommendations and the grounds presented by the government, as well as the
likelihood Cole would reoffend if not incarcerated. However, in its order denying
Cole's motion for sentence correction, the district court disavowed any reliance on
other bogus 911 calls attributable to Cole—one of the PSR's bases for departure. So
there appear to be four grounds the district court relied on in departing: (1) the
disruption of governmental functions caused by Cole's call, (2) the significant danger
to the public health and safety posed by Cole's call, (3) Cole's recidivistic tendencies,
and (4) the timing of the offense. We discuss each in turn.

      A.     Disruption of Governmental Functions

        The government argues that U.S.S.G. § 5K2.7 provides a ground for departure.
Section 5K2.7 provides that a court may depart upward "[i]f the defendant's conduct
resulted in a significant disruption of a governmental function." As mentioned above,
U.S.S.G. § 5K2.0 allows departures when such an encouraged factor is present. The
PSR stated that, in response to Cole's call, law enforcement officers were dispatched
to the local post office and school to intercept incoming mail. Cole made no specific



                                          -5-
objection to this fact, so we see no error in the court's apparent conclusion that a
governmental function was disrupted.

       Evidence concerning the significance of that disruption, however, does not
appear in the record. No evidence was presented to the district court indicating the
severity of the disruption—e.g., the time officers devoted to intercepting the mail, the
quantity of mail intercepted, or the degree of interference with the school's business.

        More importantly, the court's reliance on U.S.S.G. § 5K2.7 was misplaced. The
departure provisions state that when the disruption of governmental functions is
already taken into account by the applicable guideline, a departure is warranted only
if "the circumstances are unusual," U.S.S.G. § 5K2.7—if the circumstance is present
"to a degree substantially in excess of . . . that which ordinarily is involved" in the
offense. U.S.S.G. § 5K2.0(a)(3); accord U.S.S.G. § 5K2.0 ¶ 2 (2002). Here, the
specific offense characteristics of U.S.S.G. § 2A6.1 already provide for an increase
in the base offense level if governmental functions are substantially disrupted. See
U.S.S.G. § 2A6.1(b)(4)(A). Because the district court did not increase Cole's base
offense level under this provision, it erred in departing based on U.S.S.G. § 5K2.7.
By not increasing the base offense level, the district court implicitly found the
governmental functions of the school and mail delivery system were not disrupted to
a substantial degree. Thus, a fortiori, the disruption was not so unusual as to warrant
a departure.

      Therefore, we conclude the district court was presented with facts insufficient
to warrant a departure under U.S.S.G. § 5K2.7 and erred in departing where the base
offense level was left untouched by the disruption of governmental functions.




                                          -6-
      B.     Endangerment of Public Health and Safety

       The government also argues that U.S.S.G. § 5K2.14 provides a ground for
departure. Section 5K2.14 states, "If national security, public health, or safety was
significantly endangered, the court may increase the sentence above the guideline
range to reflect the nature and circumstances of the offense." Again, U.S.S.G. §
5K2.0 allows departures when such an encouraged factor is present. But, the facts
appearing in the record do not satisfy U.S.S.G. § 5K2.14. By all indications Cole's
threat was empty. He did not send anthrax to the school and had no means to carry
out his threat. So Cole's conduct posed no danger to national security, public health,
or safety.

       Although this circuit has not addressed the application of U.S.S.G. § 5K2.14,
cases from other circuits generally support the notion that a real, as opposed to an
empty, threat must be present. See, e.g., United States v. Leahy, 169 F.3d 433, 444
(7th Cir. 1999) (holding defendant's possession of ricin qualified for departure under
U.S.S.G. § 5K2.14 given that substance's high toxicity, undetectable nature, incurable
effects, and instability). While Cole's assertion likely caused a significant degree of
apprehension amongst law enforcement officers and school personnel (especially in
the fall of 2001), apprehension is not the same as significant endangerment.

       And, though the response to an empty threat may endanger the public, see
United States v. Flinn, 18 F.3d 826, 830 (10th Cir. 1994) (holding U.S.S.G. § 5K2.14
was applicable where "between forty and sixty officers responded to the scene,
patrons of [a nearby] restaurant . . . were instructed to lie on the floor to avoid
possible gunfire, and there was considerable tension and ammunition at the scene" as
a result of the defendant's bogus 911 call reporting a hostage situation), the record
contains no facts that substantiate such a conclusion. Thus, the district erred in
relying on U.S.S.G. § 5K2.14.



                                         -7-
      C.     The Likelihood Cole Would Commit Future Crimes

        At the sentencing hearing, the district court voiced its concern about the
possibility Cole would make similar threats if not incarcerated for a significant
period. The PSR stated that Cole made nineteen bogus calls to 911 between
September 11 and October 26, 2001, "which included a bomb threat to the schools,
fires, auto accidents, and fights." The district court, however, disclaimed any reliance
on other calls Cole made in its subsequent order denying Cole's motion for sentence
correction. This was wise given Cole's specific objection to the PSR and the lack of
any evidence attributing the other calls to Cole. "If a defendant objects to factual
allegations contained in the . . . [PSR], a district court may not adopt the PSR's
challenged facts until the defendant's objections have been heard and the government
proves by a preponderance of the evidence that the facts stated in the PSR are
accurate." United States v. Logan, 54 F.3d 452, 455 (8th Cir. 1995). Without taking
into account Cole's repetitive conduct, and thus left with the existence of only the
charged offense and a defendant with zero criminal history points, we are hard-
pressed to understand how the district court could conclude Cole likely would make
more threatening calls. Thus, to the extent Cole's purported recidivistic tendencies
were taken into account at sentencing, the district court erred.

      D.     Timing of the Offense

       The PSR identified the timing of the offense as a ground for departure under
U.S.S.G. § 5K2.0. Specifically, it stated, "the timing of the instant offense caused
greater concern and heightened investigative effort as law enforcement agencies were
particularly sensitive to threats due to the September 11, 2001, terrorist attacks, and
due to the numerous investigations being made regarding anthrax deaths. In addition,
the threats made to Paragould schools located in Greene County, Arkansas, were
significantly threatening in light of the Westside School shootings which occurred on
March 24, 1998, in Jonesboro, Arkansas, a neighboring county." The PSR

                                          -8-
recommended a departure on this ground because the applicable guidelines did not
account for these circumstances.

       It is not clear from the record how these circumstances affected the district
court's reasoning. On the one hand, as an unmentioned factor, a departure may have
been warranted under U.S.S.G. § 5K2.0(a)(2)(B). Accord U.S.S.G. § 5K2.0 ¶ 1
(2002). The district court could have concluded that Cole chose the substance of his
threat because of the particular fear it would engender. The increased sense of alarm
caused by Cole's choice may have justified a departure. On the other hand, the
district court may have merely rolled this fact into its determination that U.S.S.G. §§
5K2.7 and 5K2.14 warranted an upward departure under U.S.S.G. § 5K2.0. The
understandably increased sense of alarm may have contributed to a response by law
enforcement that itself endangered the safety of the public or it may have aggravated
the disruption to governmental services the call caused. See United States v. Harrell,
207 F. Supp. 2d 158, 169-70 (S.D.N.Y 2002) (evaluating a prank terrorist threat,
discussing cases in which such threats have warranted a departure under U.S.S.G. §
5K2.7, and cogently considering the concerns involved in such cases in the post-
September 11atmosphere).

        Given the flaws discussed above in the application of U.S.S.G. §§ 5K2.7 and
5K2.14, we cannot conclude either section justified the upward departure, even in
light of the timing of the offense. Also, we cannot affirm simply because this
circumstance may have justified some degree of departure as an unmentioned factor.
As explained above, the district court improperly considered three grounds for the
departure, and we do not know the relative weight the court gave this factor. In fact,
we do not even know what role this factor played in the court's decision. We
therefore remand for resentencing so the district court can address the matter in the
first instance.




                                         -9-
III.   CONCLUSION

      Accordingly, we set aside the sentence and remand for resentencing pursuant
to 18 U.S.C. § 3742(f)(2)(A). The district court is free to consider the issues of an
increase in the base offense level under U.S.S.G. § 2A6.1(b)(4)(A) and upward
departure in light of our decision, conducting whatever further factfinding it deems
appropriate.

       We note that 18 U.S.C. §§ 3553(c) and 3742(g) now apply to the district court.
Section 3553(c), as amended by the PROTECT Act in April 2003, requires the district
court to include in its written order of judgment the specific reasons for a departure.
In turn, section 3742(g)(2) restricts the district court's authority on remand by
allowing departures only upon a ground identified in the prior section 3553(c) written
statement. However, we hold section 3742(g)(2) does not require the district court
to impose a sentence limited only to the grounds identified in a prior section 3553(c)
written statement because the court was not required to make the section 3553(c)
written statement in December 2002 when it sentenced Cole, see United States v.
Aguilar-Lopez, 329 F.3d 960, 963 (8th Cir. 2003). Thus, the issue of upward
departure is open on remand, subject to what we have said here.

BYE, Circuit Judge, concurring in part and dissenting in part.

       I agree we should reverse the district court, vacate Cole's sentence, and remand
for resentencing. I differ, however, over the majority's implicit conclusion an upward
departure may appropriately be based on the fact Cole issued his empty threat when
the public was especially sensitive.

      I would hold the district court erred in departing upward based on the timing
of Cole's threat. As the majority acknowledges, there is no evidence to suggest law
enforcement responded in a way to endanger public safety or disrupt public services.

                                         -10-
Nor is there evidence Cole sought to engender broad alarm in the public by
threatening the spread of anthrax. On the contrary, the district court adopted the
Presentence Investigation Report, which document indicates Cole sought to scare
only his wife. The only feature of this case to distinguish it from the run-of-the mill
threat conviction is the fact the public was particularly susceptible to fear at the time.
In my view, unfocused public fear standing alone does not warrant a departure under
the Guidelines.

      I also strongly disagree with the majority's suggestion the district court may
take more evidence to support factfinding which would in turn warrant a departure.
The government failed to present such evidence at the original sentencing despite
having every opportunity to do so. I see no reason to provide a second opportunity
to produce it now as Cole has spent more than a year in prison, some of that time
seemingly contrary to law.

       I note finally the district court is encouraged to give consideration to a motion
for release pending resentencing under Rule 46(c) and 18 U.S.C. § 3143(a). It
appears from the record Cole has served 20 months in prison on this and related state
charges.3 The sentencing range for Cole's crime of conviction is 6 to 12 months. It
is not clear from the record whether any of this time is attributable to an actual state
conviction. If it is not, or if the sentences properly are served concurrently, it seems
likely Cole will already have completed any sentence the district court may impose
on remand.
                         ______________________________




      3
        Cole was first arrested on November 2, 2001, and released pending trial on
March 8, 2002. State authorities arrested him again on September 10, 2002. He
remained incarcerated, according to the Presentence Investigation Report, at the time
of his sentencing.

                                          -11-
