                                                     NOT PRECEDENTIAL



            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 09-2404


                UNITED STATES OF AMERICA

                                v.

                       WILLIAM ADAMS,
                                  Appellant


          On Appeal from the United States District Court
              for the Middle District of Pennsylvania
                      (D.C. No. 1-08-cr-00242)
            District Judge: Hon. Christopher C. Conner




            Submitted Under Third Circuit LAR 34.1(a)
                       February 11, 2010

 Before: SLOVITER, ROTH, and TASHIMA,* Circuit Judges

                      (Filed : June 25, 2010)




                            OPINION




      *
         Hon. A. Wallace Tashima, Senior Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.
TASHIMA, Circuit Judge.

       William Adams appeals his sentence of 120 months’ imprisonment for violation of

18 U.S.C. § 876(b), involving the mailing of extortionate threats. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we will affirm.

I.

       In 1973, Adams was convicted for assault with the intent to ravish and sodomy, for

which he served the maximum term of five years. In 1978, only six days after his release,

Adams attacked and raped a second victim. Adams was again convicted, and at the

subsequent sentencing proceeding, Adams attempted to assault his attorney, Robert

Tarman.

       The court sentenced Adams to fifteen to thirty years imprisonment. Although

Adams was eligible for parole after fifteen years, parole officials consistently denied him

parole, citing in at least some decision notes his potential danger to others. In 2008, two

months before his mandatory release date, Adams mailed a letter to Tarman. The letter

read as follows:

              Hi, Bob. I don’t think you remember me, but I remember you. I am
       the guy who punch you in the face back in 1979 in the courtroom. . . . You
       did such a good job that I got 15-30 years. Just like you told me in the
       county jail you are not paying me, but now it’s payback time and you are
       going to get paid.
              I am getting out of prison on 7-12-08 and I will not be on parole or
       probation or have any kind of supervision, so there won’t be anything to
       stop me. You can imagine how bitter I am or how much anger I have for
       you. What do you think I’m going to do?



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The letter went on to demand $30,000, stating: “First you will mail me a five thousand

dollar two hundred dollars check, and then I will stay away from you and your family for

a hold one year.” Adams then provided his full name, inmate number, and address.

       Adams also mailed letters to William Shreve, another attorney who had

represented him, and two apparent strangers from a list of individuals who had

volunteered in the past to assist inmates with legal matters. Each of these three letters

referenced Adams’ history of sexual violence, using language such as: “You know, in the

past I have been very nasty man and done some bad things to other people,” and “I am

moving out your way because the state has classified me as a violent sexual predator that

because I stalk my victim.” Each letter then demanded $650 from the recipient in order

for Adams to stay away from the recipient and the recipient’s family.

       A two-count indictment was filed on June 11, 2008. Adams pleaded guilty to

Count One of the Indictment, involving the letter to Tarman. In a written plea agreement,

the United States agreed to dismiss Count Two of the Indictment, which was based on the

letter to Shreve.

       At the sentencing hearing on April 29, 2009, the District Court heard testimony

regarding Adams’ conduct during his incarceration. Dr. David Scott Sacks, a

psychologist who had worked with Adams from 1995 until 2006, testified that Adams

was placed in a restricted housing unit because he posed a grave risk to other inmates and

staff in the general prison population. Sacks noted that Adams’ problems while in prison



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included “assaultive behavior, [] threatening behavior, as well as his sexually assaultive

and pressuring behavior of other inmates.” Sacks also stated that because Adams uses

calculated violence as a way of getting his needs met, the probability of him engaging in

future assaultive behavior or threats of assaultive behavior is very high. Furthermore,

Sacks found troublesome that Adams fantasized and masturbated to images of violence

and degradation of women and that he continued to act out and resist treatment even after

twenty-four years of receiving treatment. At the government’s request, Sacks used an

objective tool, the Static-99, to predict the danger of future recidivism by Adams. Using

the Static-99, Sacks predicted that Adams presented a 33 percent chance of sexual

reoffending within five years, a 52 percent chance after ten years, and a 57 percent chance

after fifteen years. Sacks posited that the Static-99 actually understated the danger that

Adams would reoffend based on his individual knowledge of Adams. In response,

Adams’ expert, Dr. John Mitchell Hume, testified that prison records indicated that

Adams had a mental disorder, but that this disorder could be treated leading to

“substantial improvement.”

       The base offense level for Adams’ violation of 18 U.S.C. § 876 was 18. Adams’

guideline imprisonment range was 33 to 41 months. The court departed upward under

U.S.S.G. § 4A1.3(a) on the ground that Adams’ criminal history category of 3

substantially underrepresented the seriousness of his criminal history or the likelihood of

recidivism. The court considered that Adams had received no criminal history points for



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his 1973 intent to ravish and sodomy conviction or a prior 1969 conviction for malicious

mischief. The court also found that Adams’ likelihood of recidivism and pattern of

deviate conduct “most closely resemble[d] defendants in categories 5 or 6.” The court

gave Adams the benefit of the doubt in departing upward to category 5, bringing Adams’

guideline range to 51 to 63 months’ imprisonment. In addition, the District Court

departed upward under U.S.S.G. § 2B3.2 because Adams’ offense included a threat to

Tarman’s family members. This departure brought Adams’ guideline range to 63 to 78

months’ imprisonment.

       After imposing the two upward departures, the court lastly considered whether an

upward variance was also warranted. In doing so, the district court considered the nature

and circumstances of Adams’ initial offense in 1978 as well as of the extortionate letters.

The court also considered the history and characteristics of the defendant, and the need to

protect the public. The court found that, in light of Adams’ continuing dangerousness

and likelihood of reoffending, an upward variance was necessary to protect the public.

However, the court disagreed with the government’s position that Adams should be

sentenced as a career offender to 151 to 188 months. The court considered as mitigating

factors Adams’ age and Dr. Hume’s testimony that Adams could improve with adequate

mental health treatment. The court then sentenced Adams to 120 months’ imprisonment

followed by three years of supervised release.

       Adams filed this timely appeal, arguing that his sentence was unreasonable under



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18 U.S.C. § 3553(a).

II.

       Because the sentencing error alleged by Adams was raised below, we review the

District Court’s sentence for abuse of discretion. United States v. Russell, 564 F.3d 200,

203 (3d Cir. 2009). The District Court abuses its discretion if it committed a significant

procedural error or if we determine that the sentence was substantively unreasonable. Id.

       Adams contends that the District Court abused its discretion by imposing an

unreasonable sentence. He bases this claim on the upward departure under U.S.S.G. §

4A1.3, the upward departure under U.S.S.G. § 2B3.2, and the upward variance. We

conclude that the sentence was reasonable.

       First, the upward departure pursuant to U.S.S.G. § 4A1.3 was reasonable. In

departing upward, the court considered Adams’ 1973 conviction for assault with the

intent to ravish and sodomy and a prior conviction for malicious mischief, as well as

Adams’ “pattern of deviate conduct[] and his likelihood of recidivism.” Adams argues

that because his prior convictions were specifically excluded from the criminal history

category calculations under § 4A1.2(e) due to their age, those convictions were already

accounted for, and an upward departure based on those convictions was unwarranted.

However, application note 8 to § 4A1.2 states that the court may upwardly depart under §

4A1.3 if it “finds that a sentence imposed outside this time period is evidence of similar,

or serious dissimilar, criminal conduct.” Further, the ultimate standard set forth for



                                             6
upward departures under § 4A1.3 is whether “the defendant’s criminal history category

substantially under-represents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). As the

court noted, Adams’ prior convictions demonstrated a pattern of violent behavior and

indicated the possibility that Adams could commit new acts of violence immediately upon

release from incarceration. The District Court found, in accordance with U.S.S.G. §

4A1.3(a)(4)(A), that Adams’s criminal history and likelihood of recidivism most closely

resembled defendants in categories 5 or 6. Giving Adams the benefit of the doubt, the

court departed upward only to category 5. This departure was substantively reasonable.

       Second, the upward departure pursuant to U.S.S.G. § 2B3.2 application note 8 was

reasonable. Application note 8 states: “If the offense involved . . . a threat to a family

member of the victim, an upward departure may be warranted.” U.S.S.G. § 2B3.2

application note 8. In his letter to Tarman, Adams demanded $30,000 in order to refrain

from harming Tarman and his family, and he emphasized this threat by underlining the

word “family.” Adams argues that the threat to Tarman’s family should not be

considered under application note 8 because no evidence suggests that Tarman’s family

was ever aware of the threat. However, application note 8 does not require an awareness

of the threat by the victim’s family. The fact that a threat is made against a family

member of the victim may be, by itself, an aggravating circumstance of the crime. See

United States v. Cuddy, 147 F.3d 1111, 1116 (9th Cir. 1998). The District Court’s



                                              7
finding of a two-level upward departure on account of the threat to Tarman’s family was

reasonable.

       Third, the upward variance was reasonable. “Variances . . . are discretionary

changes to a guidelines sentencing range based on a judge’s review of all the § 3553(a)

factors . . . .” United States v. Brown, 578 F.3d 221, 226 (3d Cir. 2009). So long as the

sentence “falls within the broad range of possible sentences that can be considered

reasonable in light of the § 3553(a) factors, we must affirm.” United States v. Wise, 515

F.3d 207, 218 (3d Cir. 2008). The District Court considered the nature and circumstances

of Adams’ offense, his history and characteristics, the kinds of sentences available, and

the possibility of sentencing disparities. It found especially probative evidence of Adams’

dangerousness and likelihood of reoffending, but balanced those considerations against

Adams’ age and expert testimony that Adams could improve with adequate mental health

treatment.

       After reviewing the record, we conclude that the District Court appropriately

considered the § 3553(a) factors and that the overall sentence was reasonable.

V.

       For the reasons set forth, we will affirm the judgment of the District Court.




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