                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                 October 18, 2007
                                                     Elisabeth A. Shumaker
                               TENTH CIRCUIT             Clerk of Court
                          __________________________

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                         No. 07-7015
 v.                                              (D.Ct. No. 04-CR-106-01-P)
                                                         (E.D. Okla.)
 W ILLIAM M ITCH ELL CHA PPLE,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant W illiam M itchell Chapple w as convicted by a jury of two counts



      *
         This order and judgment is not binding precedent except under the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.
of m ailing a threatening communication in violation of 18 U.S.C. § 876(c). He

now appeals his concurrent thirty-three-month sentences, arguing imposition of a

variance six months higher than the advisory United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”) range of twenty-one to twenty-seven months is

substantively unreasonable under the 18 U.S.C. § 3553(a) sentencing factors. W e

exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and

affirm M r. Chapple’s concurrent sentences.



                      I. Factual and Procedural Background

      The relevant facts are primarily outlined in this court’s previous decision

involving M r. Chapple’s initial appeal of his thirty-three-month sentence, which,

together w ith the record on appeal, we summarize as follows. See United States

v. Chapple, 198 Fed. Appx. 745 (10th Cir. Oct. 6, 2006) (unpublished op.).

Between October 1 and October 4, 2004, two manila envelopes containing a white

powdery substance w ere mailed from two different states to the same business

located in M uskogee, Oklahoma. Id. at 747. An employee who handled the first

envelope, postmarked from Colorado Springs, Colorado, noticed it was leaking a

powder and summoned the postal carrier, who, at the suggestion of the United

States Postal Service, contacted the M uskogee Police Department, which, in turn,

sent police officers to collect the envelope and submit it to the Oklahoma

Department of Health laboratory for analysis. Id.

                                         -2-
      A few days later, employees at the M uskogee Post Office intercepted the

second manila envelope, which was mailed from Syracuse, Kansas, and addressed

to the same business. Id. Because the postal employees believed the envelope

contained an unknown substance, a postal inspector transported it to the same

Oklahoma lab for analysis. Id. Ultimately, the lab determined both envelopes

contained non-biohazardous powders. Id.



      The postal inspector investigating the matter interviewed the owner of the

business, Christine Cannarsa, who believed the sender was M r. Chapple, a former

classm ate w ho had been stalking her for approximately eighteen months to two

years in an attempt to establish a romantic relationship with her. Id. She advised

she previously filed reports with the M uskogee Police Department and hired an

attorney, who advised M r. Chapple to stop sending communications to M s.

Cannarsa. Id. W hen the inspector interview ed M r. Chapple, he confessed to

sending the envelopes and explained he intended the powder, obtained from a

broken road flare, to scare M s. Cannarsa. Id.



      Following his arrest, M r. Chapple was convicted by a jury of two counts of

mailing a threatening communication in violation of 18 U.S.C. § 876(c). Id. The

probation officer preparing the presentence report interviewed M s. Cannarsa and

the employee who handled the first envelope. M s. Cannarsa described M r.

                                         -3-
Chapple’s contact toward her for the prior eighteen months, which included

correspondence he sent her that could be characterized as love letters and poems;

however, one particular letter made a troubling statement indicating that everyone

he had loved was now dead, which greatly bothered her. M s. Cannarsa explained

that while she was initially afraid of M r. Chapple, she became terrified after the

first suspect envelope arrived, and she outlined in great detail the negative

impacts on her life caused by his mailings and having to testify against him at

trial, as well as the various safety and other measures she had taken – all of which

affected her personally and professionally. 1



       M s. Cannarsa’s employee told the probation officer she was extremely

fearful for her health until identification of the envelope’s contents. She also

detailed the effect M r. Chapple’s actions had on her with respect to her fears for

her personal safety and possible retribution against her after she testified against

him.



       In preparing the presentence report, the probation officer calculated the

Guidelines sentencing range and recommended increasing the base level of twelve

       1
         Because M r. Chapple does not claim the district court erred in
considering the psychological and other negative impacts the mailings had on M s.
Cannarsa for the purpose of imposing a variance under § 3553(a), we decline to
outline them here, other than to note they were substantial and continuing.


                                          -4-
with a two-level enhancement under U.S.S.G. § 3D1.4(a). 2 Thus, the presentence

report assigned M r. Chapple a total offense level of fourteen, which, together w ith

his criminal history category of IV, resulted in a Guidelines range of twenty-

seven to thirty-three months imprisonment. Id. at 747-48. W hile M r. Chapple

objected to certain dates provided in the presentence report, he did not otherwise

object to the facts presented, including those regarding his prior conduct toward

M s. Cannarsa or the effect of the instant mailings on her or her employee.

Following a sentencing hearing, the district court imposed a term of imprisonment

of thirty-three months for each count, to run concurrently. Id. at 748.



      On appeal, this court remanded with instructions to vacate M r. Chapple’s

sentence and resentence him, after determining the district court improperly

applied the two-level enhancement. Id. at 751. W e rejected the government’s

argument that two direct victims existed for the purpose of considering the counts

separately for application of the § 3D1.4(a) enhancement; instead, we identified

M s. Cannarsa as the intended recipient and direct victim and determined her

employee was an indirect or secondary victim who could not be considered under

the contested Guideline, § 3D1.2. Id. at 750-51.

      2
          The probation officer recommended this increase after determining the
offense level for mailing a threatening comm unication was twelve, concluding the
tw o m ailings should be grouped separately, and then relying on U.S.S.G.
§ 3D1.4(a) to apply a two-level upward adjustment, for a combined offense level
of fourteen. See Chapple, 198 Fed. Appx. at 747-48.

                                         -5-
      Following our remand, the district court provided notice to the parties it

was considering imposing a variance above the amended advisory Guidelines

range of twenty-one to twenty-seven months imprisonment. It explained a

variance was necessary in light of the serious nature of the crime and the

psychological trauma to the direct and indirect victims, and in light of the current

atmosphere of heightened vigilance placing all citizens on notice of terrorist

activity. M r. Chapple contested the proposed variance, after which the

government filed a response in support of a variance.



      At a sentencing hearing held February 12, 2007, and after allowing the

parties an opportunity to present argument, the district court imposed a sentence

of thirty-three months on each count, to run concurrently. In “formulating the

sentence imposed,” it explained it had considered the amended advisory

Guidelines calculations together with the nature and circumstances of the case,

including the fact M r. Chapple had extensively stalked and terrorized M s.

C annarsa, culminating in the mailing of two envelopes containing an unknown

powder resembling a biohazardous substance meant to instill fear and terror in the

mind of the recipient. It also noted the Guidelines failed to consider the impact

of M r. Chapple’s actions on the indirect victims, including the employee who

received the initial envelope, the postal worker who delivered that envelope, the

law enforcement officers who responded, and the lab technicians, each of whom

                                         -6-
went through a period of unknowing and likely psychological anguish after

contact with the substance until finding out it was not harmful. It also pointed

out M r. Chapple took “advantage of a point in time that the citizens of this nation

were already functioning on a heightened fear of terrorist activity.” Finally, it

noted it considered the sentencing factors in 18 U.S.C. § 3553(a) and concluded

the sentence reflected the seriousness of the offense, promoted respect for the

law , provided just punishment for the offense, afforded adequate deterrence to

criminal conduct, protected the public from further crimes by M r. Chapple, and

provided correctional treatment in the most effective manner.



                                   II. Discussion

      M r. Chapple now appeals his sentence, arguing it is unreasonable because

the district court improperly applied a six-month variance above the advisory

Guidelines range. In support, he discredits each of the reasons for the variance,

suggesting the district court erred in: 1) concluding he stalked and terrorized the

victim based merely on love letters and poems sent to her, which is non-criminal

and irrelevant conduct; 2) considering his prior stalking conduct tow ard M s.

Cannarsa, which is unrelated to the offense charged; 3) failing to explain why the

psychological harm to M s. Cannarsa’s employee justified a variance; 4)

considering harm to the other indirect victims, which was unsupported by any

proof; 5) considering the fact his crime involved two mailings, which is

                                         -7-
insufficient under the Guidelines for a “variance”; and 6) concluding he took

advantage of the country’s fear of terrorism, which he claims is irrelevant since

the mailings “occurred three years after 9-11.” W hile M r. Chapple acknowledges

he did not preserve a vindictiveness claim in district court, he submits the record

supports a presumption of vindictiveness, as well as actual vindictiveness, given

the district court gave him the same thirty-three-month sentence originally

imposed. 3



      In considering M r. Chapple’s sentence on appeal, “we review a district

court’s sentence for abuse of discretion, asking whether it is reasonable under the

§ 3553(a) factors.” United States v. Garcia-Lara, ___ F.3d ___, ___, 2007 W L

2380991, at *1 (10th Cir. Aug. 22, 2007) (slip op.). W e employ an abuse of

discretion standard by reviewing a district court’s factual findings for clear error.

Id. at *2. The § 3553(a) factors which guide the reasonableness inquiry “include

the nature of the offense and characteristics of the defendant, as well as the need

for the sentence to reflect the seriousness of the crime, to provide adequate

deterrence, to protect the public, and to provide the defendant with needed

training or treatment ....” United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.

2006) (per curiam). W hile we defer to the district court’s application of these

      3
        M r. Chapple does not contend, and the record does not demonstrate,
reasonable notice of the variance was not provided. He also does not contest the
method of calculation, but only the substantive reasonableness of the sentence.

                                         -8-
factors, we will not exercise deference if it commits legal error, such as giving

one factor too much weight, disregarding another, or ignoring or misinterpreting

applicable reasonableness case law. See G arcia-Lara, 2007 W L 2380991, at *2.

Thus, we defer to the district court’s exercise of discretion within the bounds of

reasonableness. Id.



      The Supreme Court, in Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456

(2007), made clear a sentence falling outside the Guidelines range, like the one at

issue here, is not per se entitled to a “presumption of unreasonableness.” Id. at

2467; Garcia-Lara, 2007 W L 2380991, at *3. Rather, a court may, in its

discretion, conclude a non-Guidelines sentence best serves the purpose of the

§ 3553(a) sentencing factors. Garcia-Lara, 2007 W L 2380991, at *4. But if it

disregards or gives too little weight to the Guidelines factors, it must find

reasonable justification for doing so under those factors. Id. “The farther the

court diverges from the advisory guideline range, the more compelling the reasons

for the divergence must be.” Id. (quotation marks, alterations, and citation

omitted). On the other hand, a lesser but still “significant” variance needs only

“sufficient explanation and justification ....” Id. “To assess the magnitude of a

variance, we look to the difference between the advisory Guidelines range and the

sentence imposed in terms of both percentage and absolute number of months.”

Id.

                                          -9-
      W e begin by assessing the magnitude of the complained-of variance. Here,

the variance is six months above the Guidelines range of twenty-one to twenty-

seven m onths, which constitutes a twenty-two-percent increase above the highest

Guidelines range of twenty-seven months. Even under the increased scrutiny

given lesser but still significant variances, we believe the sentence imposed was

reasonable based on the sufficient explanation and justification provided by the

district court in conjunction with the § 3553(a) factors.



      First, in regard to the district court’s consideration of M r. Chapple’s prior

conduct in stalking and terrorizing M s. Cannarsa, it did so in determining the

nature of the offense under § 3553(a). W hile M r. Chapple implies no evidence

supports the district court’s conclusion he stalked M s. Cannarsa, he did not object

to the facts presented in the presentence report. “It is well established that the

sentencing court is entitled to rely on uncontested facts contained in the

[presentence report] for certain sentencing purposes,” including to draw

conclusions about the nature of the offense and the defendant’s characteristics

relevant to the sentencing factors in 18 U.S.C. § 3553(a). United States v. M ateo,

471 F.3d 1162, 1166-67 (10th Cir. 2006), cert. denied, 127 S. Ct. 2890 (2007). In

addition, while M r. Chapple asserts the district court determined he stalked and

terrorized M s. Cannarsa based merely on love letters and poems, it is clear its

conclusion was based on the totality of his conduct, which resulted in her fearing

                                         -10-
for her personal safety even before the mailing of the two threatening envelopes

occurred. Indeed, this court previously determined “it is undisputed that M s.

Cannarsa was the person Chapple had been stalking and who Chapple was seeking

to threaten [or] intimidate.” Chapple, 198 Fed. Appx. at 750. To now argue no

evidence established he stalked M s. Cannarsa is extremely unpersuasive. M s.

Cannarsa testified at trial, and while neither party furnished the transcript of that

testimony, it is evident the district court credited her testimony and did not rely

solely on the presentence report to conclude M r. Chapple stalked her.



      In addition, the fact M r. Chapple was never previously arrested or

convicted for stalking M s. Cannarsa did not prevent the district court from

considering such prior conduct in conjunction with the § 3553(a) factors.

Instead, “conduct that is not formally charged or is not an element of the offense

of conviction may enter into the determination of the applicable guideline

sentencing range.” United States v. Allen, 488 F.3d 1244, 1255 (10th Cir. 2007)

(quotation marks and citation omitted). However, such conduct must relate to the

offense of the conviction. Id. Having already determined M r. Chapple “stalked”

M s. Cannarsa, whom he “was seeking to threaten [or] intimidate,” Chapple, 198

Fed. Appx. at 750, it is apparent his prior conduct culminated in the instant

offense, which he admitted w as intended to scare her. Thus, we disagree with M r.

Chapple’s contention that his prior conduct, in which he sent at least one

                                          -11-
worrisome letter to M s. Cannarsa, was not related to the instant offense of

sending threatening communications. Accordingly, the district court did not err

in considering such prior conduct as part of the nature of his offense. 4



      Next, we note M r. Chapple does not argue in his appeal brief that the

district court erred in considering the psychological and other negative impacts

the mailings had on M s. Cannarsa for the purpose of imposing a variance under

§ 3553(a). As to her employee, we believe the uncontested facts in the

presentence report sufficiently establish the psychological and other negative

impacts the mailings had on her for the purpose of imposing a variance under

§ 3553(a). Like M s. Cannarsa, she testified at trial, and it is evident the district

court credited her testimony. While this court previously determined U.S.S.G.

§ 3D1.4(a) did not apply to M s. Cannarsa’s employee, an indirect victim, for the

purpose of applying the two-level upward departure, we did not preclude the

district court from considering the impact of M r. Chapple’s mailing on that same

employee under the § 3553(a) sentencing factors for the purpose of applying a



      4
         In inferring the district court erred in considering his prior stalking
conduct toward M s. Cannarsa, M r. Chapple summarily points out the Guidelines
already contemplate an upward departure for “extreme conduct” under § 5K2.8,
which the presentence report and district court did not consider. However, it is
clear M r. Chapple raised this issue prior to sentencing, and by failing to apply
§ 5K2.8, it is apparent the district court did not believe his conduct warranted
application of that Guideline, but instead considered such conduct as one of the
circumstances supporting a variance.

                                          -12-
variance. 5



       As to the other individuals negatively affected by M r. Chapple’s mailings,

we recognize the threat of biohazardous terrorism reached its zenith in the fall of

2001 – three years before his mailings occurred. 6 However, a number of cases

since 2001 establish a continuation of terror-related threats involving substances

meant to resemble anthrax or other biohazardous substances. 7 In addition, it is

self-evident that this country, since 2001, continues to experience a heightened


       5
        As part of his argument, M r. Chapple suggests the district court cannot
consider psychological injury to indirect victims because U.S.S.G. § 5K2.3 only
proscribes an upward departure for direct victims who suffer extreme
psychological injury. However, even if, as M r. Chapple contends, § 5K2.3 does
not apply to indirect victims, the district court was not prevented from
considering harm to them in the form of a variance under § 3553(a).
       6
         See, e.g., Stevens v. Battelle M em’l Inst., 488 F.3d 896, 898 (11th Cir.
2007) (pointing out in the fall of 2001 an unknown individual or group mailed
letters containing anthrax to recipients in Florida, New York, and W ashington,
D.C.); Hatfill v. The New York Times Co., 427 F.3d 253, 254 (4th Cir. 2005) (per
curiam) (explaining “[i]n the aftermath of the September 11 attacks, the nation
was alerted to the fact that someone was sending letters laced with anthrax
through the mails. The letters were not simply directed at public officials but
apparently at private individuals as well. Those who handled mail on a regular
basis were concerned for their safety, and even ordinary residents w ere advised to
take special precautions when opening their mail.”).
       7
         See, e.g., United States v. Evans, 478 F.3d 1332, 1336 (11th Cir. 2007),
cert. denied, __ S. Ct. __, 2007 W L 2064253 (Oct. 1, 2007) (No. 07-5316);
United States v. Dudley, 463 F.3d 1221, 1224 (11th Cir. 2006); United States v.
Davila, 461 F.3d 298, 299-300 (2d Cir. 2006), cert. denied, 127 S. Ct. 1485
(2007); United States v. Scott, 441 F.3d 1322, 1324 (11th Cir. 2006); United
States v. Guevara, 408 F.3d 252, 255 (5th Cir. 2005); United States v. Reynolds,
381 F.3d 404, 405 (5th Cir. 2004).

                                        -13-
fear of terrorist activity, and individuals who believe they have been in contact

with biohazardous substances, like anthrax, continue to fear for their personal

health and safety. W hile no evidence was presented establishing the impact of

M r. Chapple’s mailings on the other individuals who handled the envelopes, the

uncontested facts in the presentence report indicate the mail carrier, M uskogee

police officers, the postal inspector, postal workers, and employees with the

Oklahoma H ealth Department all came in contact with an envelope they knew was

leaking an unidentified substance. Therefore, it was not unreasonable for the

district court to make an inference that those who handled the envelopes likely

had concern for their physical safety and well-being until the substance was

identified as not harmful. After providing M r. Chapple notice of its intention to

consider this circumstance and an opportunity to present argument, it was

appropriate for the district court to consider it as part of the nature of M r.

Chapple’s offense for the purpose of determining whether the advisory Guidelines

sentencing range met the § 3553(a) factors.



      W hile M r. Chapple generally complains the Guidelines preclude the district

court from considering the mailings separately or their impact on indirect victims,

this case does not involve an upward “departure” under the Guidelines, as did his

prior appeal. Rather, as the district court explained, it applied a “variance” under

§ 3553(a), due to the failure of the Guidelines to take into account the effect of

                                           -14-
both mailings on the indirect victims. In other words, having been precluded

from applying an upward “departure” based on the impact at least one mailing had

on an indirect victim, on remand the district court applied an upward “variance”

to take into account a circumstance which the Guidelines did not. As the district

court suggested, M r. Chapple’s offense of mailing threatening comm unications

did not impact only the intended recipient, M s. Cannarsa, but many more

individuals – a situation the Guidelines did not contemplate. Like the district

court, we believe M r. Chapple’s prior stalking conduct, together with the negative

impact his mailings had on M s. Cannarsa and the multiple other individuals who

handled the envelopes, is sufficient, for the purpose of applying a six-month

upward variance, to distinguish M r. Chapple’s offense from that of an ordinary

defendant who mails a threatening communication. W hile w e previously

determined M r. Chapple’s thirty-three-month sentence fell “clearly outside of the

national norm established by the Guidelines for the crimes of conviction,”

Chapple, 198 Fed. Appx. at 751 (quotation marks and citation omitted), we now

conclude a thirty-three-month sentence is reasonable based on the district court’s

sufficient explanation and justification in conjunction with § 3553(a).



      Finally, as previously indicated, the district court stated a thirty-three-

month sentence w as reasonable after considering all of the sentencing factors

under 18 U.S.C. § 3553(a). Thus, it does not appear it abused its discretion or

                                         -15-
otherwise impermissibly gave any one factor too much weight, disregarded

another factor, or ignored or misinterpreted applicable reasonableness case law.

W e defer to the district court’s exercise of discretion in imposing an upward six-

month variance, which we believe is within the bounds of reasonableness.

Garcia-Lara, 2007 W L 2380991, at *2. Based on this determination and the fact

M r. Chapple did not preserve a vindictiveness claim, we decline to address his

vindictiveness argument.



                                  III. Conclusion

      For these reasons, we A FFIRM M r. Chapple’s concurrent sentences.



                                       Entered by the C ourt:

                                       W ADE BRO RBY
                                       United States Circuit Judge




                                         -16-
