               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0329n.06

                                          No. 13-5576
                                                                                      FILED
                         UNITED STATES COURT OF APPEALS                          Apr 28, 2014
                              FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )   ON APPEAL FROM THE UNITED
v.                                                     )   STATES DISTRICT COURT FOR
                                                       )   THE EASTERN DISTRICT OF
RONALD PREZ WAGONER,                                   )   TENNESSEE
                                                       )
       Defendant-Appellant.                            )
                                                       )
                                                       )


       BEFORE: MERRITT, COOK, and STRANCH, Circuit Judges.

       PER CURIAM. Ronald Prez Wagoner appeals his 48-month sentence for threatening to

assault or murder a Social Security Administration (SSA) service representative. We affirm.

       After the district court found him competent to stand trial, Wagoner pleaded guilty to

threatening to assault or murder with intent to intimidate Eric Carey, a SSA service

representative, while Carey was engaged in the performance of his official duties, in violation of

18 U.S.C. § 115(a)(1)(B). The parties stipulated to the following factual basis for Wagoner’s

guilty plea:

               On June 26, 2012, the defendant contacted the Social Security
       Administration (SSA) District Office located at 8530 Kingston Pike, Knoxville,
       Tennessee, via telephone to inquire about the status of his Social Security
       benefits. During his phone conversation with Service Representative (SR) Eric
       Carey, the defendant was advised that his representative payee had already
       received the check for the month of June and that he would need to contact his
       payee, Richard Campbell III. The defendant stated that he should not have to
       contact his payee to get his check. SR Carey advised the defendant that in order
       to request a replacement check, his payee would need to call SSA to report the
No. 13-5576
United States v. Wagoner

       check missing. The defendant then repeatedly stated, “Listen here white boy, you
       are going to get me my check.” The defendant then asked SR Carey what time he
       was taking lunch, and then stated that he was going to come have lunch with SR
       Carey to get his check. SR Carey refused to provide his lunch schedule to the
       defendant, and the defendant cursed as he demanded to know what time SR Carey
       was taking lunch. SR Carey then informed the defendant that if he continued to
       use profanity, the call would be terminated. The defendant replied, “If you do not
       give me my check by Friday, I will come and terminate you.”

              On Friday, June 29, 2012, at approximately 7:55 a.m., the defendant was
       observed outside the Social Security Administration District Office located at
       8530 Kingston Pike, Knoxville, Tennessee. As they were arriving for work,
       several SSA employees observed the defendant in the employee parking lot
       carrying an aluminum bat. The defendant began walking behind a claim
       representative and asked if the office opened in one hour. The claim
       representative told the defendant that was correct, and then quickly entered the
       employee entrance.

              The Operations Supervisor came to the employee entrance door as the
       defendant was passing by. The Operations Supervisor asked the defendant if
       there was a reason he was carrying a bat. The defendant responded, “Yes. If I
       don’t get my check when you open, I am going to do some Goddamn damage.”
       The Operations Supervisor immediately had someone call 9-1-1 to report the
       incident. Prior to departing the employee parking lot, the defendant told another
       SSA employee, “If I do not get my money today someone is going to get hurt.”

              Knoxville Police Department officers arrived on scene and made contact
       with the defendant. The defendant was observed carrying an aluminum bat, and
       was apprehended and arrested for disorderly conduct.

(R. 30, Notice of Factual Basis, PageID## 85-87).

       Wagoner’s presentence report set forth a base offense level of 12, which was increased

by 6 levels because “the offense involved any conduct evidencing an intent to carry out such

threat.” USSG § 2A6.1(b)(1). A 3-level reduction for acceptance of responsibility yielded a

total offense level of 15. Wagoner’s lengthy criminal history — more than 70 convictions

including a prior federal conviction for threatening to assault a magistrate judge — produced a

criminal history category of VI.    The resulting guidelines range was 41 to 51 months of

imprisonment.


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No. 13-5576
United States v. Wagoner

       Wagoner objected to the 6-level increase under USSG § 2A6.1(b)(1), asserting that his

actions on Friday, June 29, 2012, were directed toward the SSA in general and not toward Carey.

The district court overruled Wagoner’s objection and, after considering the sentencing factors

under 18 U.S.C. § 3553(a), imposed a within-guidelines sentence of 48 months of imprisonment.

       In this timely appeal, Wagoner contends that the district court erred in ruling that his

actions evidenced an intent to follow through with his threat when he was actually intent on

getting his benefits check and not on finding Carey. “When reviewing the district court’s

application of the Sentencing Guidelines, we review the district court’s factual findings for clear

error and mixed questions of law and fact de novo.” United States v. May, 568 F.3d 597, 604

(6th Cir. 2009). Courts differ as to the standard of review applied to a 6-level increase under

USSG § 2A6.1(b)(1). Compare United States v. Hines, 26 F.3d 1469, 1473 (9th Cir. 1994)

(“The district court’s finding that [the defendant’s] conduct evidenced an intent to carry out his

threat is a factual finding that we review for clear error.”), and United States v. Sauerwein,

5 F.3d 275, 278 (7th Cir. 1993) (“The district court’s finding that [the defendant’s] conduct

evidenced an intent to carry out his threat is one of fact that we review only for clear error.”),

with United States v. Barbour, 70 F.3d 580, 586 (11th Cir. 1995) (“[W]hether the facts evidence

an intent to carry out the threat is a question of law and is reviewed de novo.”). Regardless of the

standard of review, the district court properly applied the enhancement.

       USSG § 2A6.1(b)(1) provides for a 6-level increase “[i]f the offense involved any

conduct evidencing an intent to carry out such threat.” We have held that “[t]he pivotal inquiry

when determining the appropriateness of a § 2A6.1(b)(1) enhancement is whether the defendant

intended to carry out the threat, and the likelihood that he would actually do so.” United States

v. Newell, 309 F.3d 396, 400 (6th Cir. 2002). “Accordingly, essential to the determination of


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No. 13-5576
United States v. Wagoner

whether to apply the six-point enhancement is a finding that a nexus exists between the

defendant’s conduct and the threats that form the basis of the indictment.” Id.

        Overruling Wagoner’s objection to the 6-level increase under USSG § 2A6.1(b)(1), the

district court stated:

        On June the 26th, 2012, the Defendant placed a telephone call that initiated the
        instant offense. During that call the Defendant made a specific threat, which is
        the offense he pled guilty to and is being sentenced for here today.

        While on the telephone, the Defendant issued an ultimatum. He gave a deadline
        of Friday, June the 29th, 2012, by which he was to receive his check. If he did
        not receive his check by that day, he informed the victim that, “I will come and
        terminate you.”

        By arriving at the Social Security office on Friday, which was the deadline date,
        with an aluminum bat in his hands, he was exhibiting conduct that would indicate
        he intended to carry out the threat. Further, he was hitting the building with the
        bat, which could be a form of intimidation.

(R. 47, Sent. Tr. 8, PageID# 146). We agree with the district court that Wagoner’s conduct

evidenced an intent to carry out his threat against Carey, warranting application of the 6-level

increase under USSG § 2A6.1(b)(1). Wagoner told Carey, “If you do not give me my check by

Friday, I will come and terminate you.” (R. 30, Notice of Factual Basis 2, PageID# 86). On

Friday, Wagoner went to the SSA office with an aluminum bat and said, “If I do not get my

money today someone is going to get hurt.” (Id.). Going to where Carey worked on the stated

deadline with an aluminum bat establishes a nexus between Wagoner’s conduct and his threat to

“terminate” Carey. See Newell, 309 F.3d at 402 (holding that the defendant’s purchase of a

firearm and ammunition on the same day that he made a threat “demonstrates that his threats are

‘more than mere puffery,’ and evidences an intent to carry out the threats”).

        Because the district court properly applied the 6-level increase under USSG

§ 2A6.1(b)(1), we affirm Wagoner’s 48-month sentence.


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