                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 96-4222
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *   Appeal from the United States
      v.                                 *   District Court for the
                                         *   Western District of Missouri.
David Lee Patrick,                       *
                                         *
             Appellant.                  *
                                    ___________

                             Submitted: April 16, 1997

                                  Filed: July 8, 1997
                                   ___________

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

       David Lee Patrick appeals from his conviction on two counts of mailing
threatening communications, in violation of 18 U.S.C. § 876, and the resulting sentence
imposed by the district court.1 We affirm.

       The victim ended a two-year romantic relationship with Patrick in April of 1993.
Patrick was unable to accept the break-up and began what can only be described as


      1
        The Honorable Russell G. Clark, United States District Judge for the Western
District of Missouri.
extensive harassment of the victim. This harassment took the form of numerous
unwanted letters, faxes, phone calls, and in-person encounters at the victim’s home,
workplace, and church. Patrick also threatened and assaulted the victim and damaged
her car. The assault led to the issuance of a civil protection order for the victim against
Patrick. Patrick subsequently sent two threatening faxes to the victim in April of 1994,
for which he was arrested. Patrick pleaded guilty to sending threatening interstate
communications, in violation of 18 U.S.C. § 875, and in July of 1994 was sentenced
to thirty-six months’ imprisonment by the United States District Court for the District
of Arizona.

      While serving this sentence at the Federal Medical Center in Springfield,
Missouri, Patrick sent two threatening letters to the victim, one in October and the other
in December of 1994, which resulted in a two-count indictment. Following Patrick’s
conviction, the district court sentenced him to forty-two months’ imprisonment, to be
served consecutively to the Arizona sentence.

       Patrick argues that the district court erred in denying his motion for judgment of
acquittal based on the insufficiency of the evidence. In considering this claim, we must
review the evidence in the light most favorable to the government, reversing only if we
conclude that no reasonable jury could have found Patrick guilty beyond a reasonable
doubt. See United States v. Caldwell, 83 F.3d 954, 957 (8th Cir. 1996).
       Patrick first argues that the letters could reasonably be interpreted in a non-
threatening way and that the government failed to introduce evidence removing the
ambiguity, as required by United States v. Barcley, 452 F.2d 930, 933 (8th Cir. 1971).
We disagree, for we have held that “‘[i]f a reasonable recipient, familiar with the
context of the communication, would interpret it as a threat, the issue should go to the
jury.’ When determining whether a reasonable person would feel threatened, we must
review the ‘totality of the circumstances in which the communication was made.’” See
United States v. Whitfield, 31 F.3d 747, 749 (8th Cir. 1994) (quoting United States v.


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Bellrichard, 994 F.2d 1318, 1323-24 (8th Cir. 1993)). Patrick’s letters tell the victim
she must talk to Patrick and that she is going to have to kill Patrick to stop him. The
letters also refer to the history of the relationship, say that the victim must “answer to
me,” warn her that “I will not ever give up” and “when I get out, your life will change,”
and make other statements which the victim could reasonably interpret as threatening.
The victim was well aware of Patrick’s extensive past harassment of her, including the
assault that resulted in a protection order, and she was aware that Patrick had
previously owned a gun. See Whitfield, 31 F.3d at 749 (victim received more than 60
letters over seven years evidencing desire of sexual relationship, and was aware of
defendant’s past criminal conduct and mental disorder and that defendant had carried
gun, traveled to her city, and called her home). Further, the victim testified about the
fear she felt and how she believed that Patrick was “coming for me. He’s going to
come and there’s going to be some kind of confrontation.” The evidence was sufficient
to support the conviction, and the district court did therefore not err in denying
Patrick’s motion for judgment of acquittal.

       Patrick also argues that the government did not prove that he had made a “true
threat” to injure. He contends that given his incarceration and his short life expectancy
(Patrick suffers from HIV infection) he could not have intended his letters to be threats
of personal injury to the victim because he did not believe he would be released from
prison before he died. Patrick’s subjective intent is irrelevant, however. See Whitfield,
31 F.3d at 749 n.4; United States v. Manning, 923 F.2d 83, 86 (8th Cir. 1991).
Moreover, that Patrick’s threat was contingent upon his release from prison does not
save him from violating section 876. See Bellrichard, 994 F.2d at 1322 (threat may be
“true threat” even if premised on a contingency); Martin v. United States, 691 F.2d
1235, 1240 (8th Cir. 1982) (defendant wrote threatening letter while incarcerated for
life term, but eligible for parole in 1981; district court properly instructed jury that the
actual capability to successfully accomplish the threat was not element of offense).




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       Patrick argues that his criminal history score should have been category II
instead of category III because three points should not have been added for his Arizona
sentence. See U.S.S.G. § 4A1.1(a) (“Add 3 points for each prior sentence of
imprisonment”). He argues that his Arizona sentence was not a “prior sentence”
because his conduct in that case was relevant conduct to the Missouri charges and thus
became part of the “instant offense” in the Missouri case. See U.S.S.G. § 4A1.2(a)(1)
& comment. (n.1) (prior sentence means sentence previously imposed for conduct that
is not part of the instant offense; “[c]onduct that is part of the instant offense means
conduct that is relevant conduct to the instant offense under the provisions of § 1B1.3
(Relevant Conduct)”).

       “Conduct that is a ‘severable, distinct offense’ is not part of the offense of
conviction for purposes of § 4A1.1. [In determining] whether conduct is part of the
instant offense, ‘the district court considers several factors, including temporal and
geographical proximity, common victims, and a common criminal plan or intent.’”
United States v. Torres-Diaz, 60 F.3d 445, 448 (8th Cir.) (quoting United States v.
Blumberg, 961 F.2d 787, 792 (8th Cir. 1992)), cert. denied, 116 S. Ct. 432 (1995).
Patrick’s actions in this case constitute a distinct and severable offense from his actions
in the prior case because although his offenses had a common victim, they did not have
the requisite temporal or geographical proximity. Patrick’s prior offense consisted of
faxing threats from Arizona to the victim six and eight months before he wrote and sent
the two letters giving rise to the present prosecution. Accordingly, we cannot say that
the district court erred in overruling Patrick’s objection to his criminal history
calculation.

      Patrick’s double jeopardy argument based on the district court’s decision to
admit certain evidence under Federal Rule of Evidence 404(b) is without merit. See
United States v. Felix, 503 U.S. 378, 386-87 (1992).

      The conviction and sentence are affirmed.

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A true copy.


      Attest:


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




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