        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0112P (6th Cir.)
                File Name: 00a0112p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                  ;
                                   
 UNITED STATES OF AMERICA,
                                   
           Plaintiff-Appellee,
                                   
                                   
                                      No. 98-4515
           v.
                                   
                                    >
 CHARLES H. HUDSPETH,              
         Defendant-Appellant. 
                                  1
      Appeal from the United States District Court
     for the Southern District of Ohio at Cincinnati.
    No. 97-00086—Herman J. Weber, District Judge.
              Submitted: February 4, 2000
           Decided and Filed: March 30, 2000
       Before: WELLFORD, BATCHELDER, and
             DAUGHTREY, Circuit Judges.
                  _________________
                       COUNSEL
ON BRIEF: Richard W. Smith-Monahan, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, SOUTHERN DISTRICT
OF OHIO, Cincinnati, Ohio, for Appellant. Terry Lehmann,
ASSISTANT UNITED STATES ATTORNEY, Cincinnati,
Ohio, for Appellee.



                            1
2    United States v. Hudspeth                   No. 98-4515      No. 98-4515                   United States v. Hudspeth       7

  DAUGHTREY, J., delivered the opinion of the court, in           States v. Stanley, 24 F.3d 1314 (11th Cir. 1994), cited by the
which BATCHELDER, J., joined. WELLFORD, J. (pp. 6-7),             government in its brief, all involved law enforcement officials
delivered a separate concurring opinion.                          and did not involve the guideline in question. United States
                                                                  v. Muhammed, 948 F.2d 1449 (6th Cir. 1991), involved the
                    _________________                             former version of § 3A1.2, and the defendant assaulted a law
                                                                  employment official in the course of attempted bank robbery
                        OPINION                                   of a federally insured bank in that case. It is not pertinent to
                    _________________                             the circumstances of this case, in my view.
  MARTHA CRAIG DAUGHTREY, Circuit Judge. The                        Strangely, neither the statute under which defendant was
defendant, Charles Howard Hudspeth, appeals his sentence of       convicted nor the indictment itself presented under 18 U.S.C.
21 months’ incarceration and three years’ supervised release,     § 876 makes mention of the threat being caused, motivated,
imposed as a result of his conviction for mailing threatening     or engendered by reason of the victim’s official status. The
communications in violation of 18 U.S.C. § 876 (1994).            applicable part of the statute refers to a “threat” addressed to
Hudspeth alleges that the district court impermissibly            “any other person to injure the person” through the use of the
enhanced his sentence pursuant to United States Sentencing        mail. The indictment tracks the statute and makes no mention
Guideline § 3A1.2(a), which mandates an increase of three         of the language contained in guideline § 3A1.2, which refers
sentencing levels if the victim of federal criminal conduct was   to the threat’s being “motivated by such [official] status.”
“a government officer or employee.” We find no error and,
for the reasons set out below, we affirm the district court’s       Under the circumstances, it is with trepidation and some
judgment.                                                         uncertainty that I join the majority opinion.
    PROCEDURAL AND FACTUAL BACKGROUND
   In 1997, Charles Hudspeth was indicted on two counts of
mailing threatening communications to Joseph Deters, a
prosecuting attorney for Hamilton County, Ohio, in part for
Deters’s presumed participation in Hudspeth’s prosecution on
state criminal charges. As part of a plea agreement with the
government, Hudspeth pleaded guilty to one count of the
indictment. The district court sentenced Hudspeth to 21
months’ incarceration in federal prison, to be served
consecutively with Hudspeth’s ongoing state prison sentence
and to be followed by a three-year term of supervised release.
The court enhanced Hudspeth’s sentence by three levels
pursuant to § 3A1.2(a) of the sentencing guidelines, entitled
“Official Victim,” because Joseph Deters was “a government
official of Hamilton County.” On appeal, Hudspeth claims
that the term “government officer or employee” in § 3A1.2(a)
refers only to federal employees, not to state or local
6       United States v. Hudspeth                       No. 98-4515        No. 98-4515                    United States v. Hudspeth        3

                   ______________________                                  employees, and thus that his conduct in mailing threatening
                                                                           correspondence to Deters was not covered by this provision.
                      CONCURRENCE
                   ______________________                                                          DISCUSSION

  HARRY W. WELLFORD, Circuit Judge, concurring. I                             Section 3A1.2(a) states “If . . . the victim was a government
reluctantly concur in my colleague’s opinion in this case.                 officer or employee; a former government officer or
Were I writing on a clean slate, my view would be contrary to              employee; or a member of the immediate family of any of the
that of the majority. It seems to me that the guideline in                 above, and the offense of conviction was motivated by such
question, § 3A1.2(a), goes far beyond the import of 18 U.S.C.              status . . . increase by 3 levels.” The question of whether
§ 1114, which deals with “protection of officers and                       § 3A1.2(a), one of a number of guidelines provisions
employees of the United States.” (Emphasis added.) Why the                 requiring victim-related adjustments to federal sentences,
federal guidelines should have special concern about threats               applies to cases where the victim is a state or local employee
to local or county officials and employees and enhance                     is apparently one of first impression in this circuit, although
federal penalties by reason of such factor escapes me,                     other federal appeals courts have held that the provision does
particularly in the absence of specific language that a                    cover such cases. See United States v. Stewart, 20 F.3d 911,
“government officer or employee” 1includes a non-federal                   918 (8th Cir. 1994); cf. United States v. Aman, 31 F.3d 550,
government official or employee.          Should the federal               556 (7th Cir. 1994). Based on our de novo review of the
sentencing guidelines bring about a particular enhancement to              district court’s sentencing order, see United States v. Talley,
a federal sentence for threats to a municipal secretary or a               164 F.3d 989, 1003 (6th Cir.), cert. denied, 119 S. Ct. 1793
sanitation worker or his or her immediate family? I think not              (1999), we see little ambiguity in applying the plain language
as a matter of logic and federalism.                                       of the provision to these facts: Joseph Deters was a county
                                                                           government employee, and Hudspeth’s admitted criminal
  The Stewart case, cited in support by the majority, involved             conduct was motivated by Deters’s status as “a government
threats made to an Arkansas Department of Corrections                      officer or employee.” Moreover, we agree with the Eighth
official in a federal courthouse. One can see a federal                    Circuit that, as a matter of policy, there is “absolutely no basis
connection in such a case with 18 U.S.C. § 1114. United                    for limiting the guideline,” and whatever deterrent effect may
States v. Aman, 31 F.3d 550, 536 (7th Cir. 1994), does                     be presumed from its promulgation, in this manner. See
describe the 1992 amendment to the guideline in question as                Stewart, 20 F.3d at 918.
“greatly” expanding those who could be an “official victim”
and cause a federal sentence enhancement. It does not appear,                Hudspeth argues that, under the rule of lenity, we should
however, that the defendant in Aman made the direct                        construe this purportedly ambiguous guidelines provision in
challenge made by Hudspeth in this case.                                   his favor. Although we do apply the rule of lenity to matters
                                                                           relating to the sentencing guidelines, see United States v.
  United States v. Garcia, 34 F.3d 6 (1st Cir. 1994); United               Sanders, 162 F.3d 396, 402 (6th Cir. 1998), and, indeed, have
States v. Alexander, 48 F.3d 1477 (9th Cir. 1995), and United              not hesitated in the past to apply the rule to decisions
                                                                           regarding criminal sanctions, see United States v. Morton, 17
                                                                           F.3d 911, 915 (6th Cir. 1994), the rule of lenity is generally
    1
      Before the amendment, I could see more reason for enhancement        inapplicable unless, “after a court has ‘seize[d] [on] every
when the threatened party was a “law enforcement or corrections officer”   thing from which aid can be derived,’ it is still left with an
of a state agency.
4      United States v. Hudspeth                  No. 98-4515     No. 98-4515                   United States v. Hudspeth        5

ambigu[ity].” Chapman v. United States, 500 U.S. 453, 463         else in the structure of the guidelines or the history of their
(1991) (quoting United States v. Bass, 404 U.S.336, 347           amendments supports Hudspeth’s position, and his “mere
(1971)).                                                          assertion of an alternative interpretation of a sentencing
                                                                  guideline is not enough to bring the rule [of lenity] into play.”
   We believe both that the meaning of § 3A1.2(a) is clear and    United States v. Tagore, 158 F.3d 1124, 1128 n.3 (10th Cir.
that the history of the provision affirms our conclusion that     1998).
conduct motivated by the work of state and local employees,
or by their status as employees, is covered by this guideline.       Although we recognize that, according to the pre-sentence
Section 3A1.2(a) was last amended in 1992; pre-amendment,         report recommending enhancement, the target of the
it stated:                                                        threatening communications in this case apparently suffered
                                                                  little or no injury from the receipt of the threats, we conclude
    If . . . the victim was a law enforcement or corrections      that application of § 3A1.2(a) depends on the victim’s status,
    officer; a former law enforcement or corrections officer;     not on whether he or she suffered harm. We hold that federal
    an officer or employee included in 18 U.S.C. § 1114; a        criminal sentences may be enhanced pursuant to § 3A1.2(a)
    former officer or employee included in 18 U.S.C. § 1114;      if the underlying conduct was motivated by the victim’s status
    or a member of the immediate family of any of the above,      as a state or local government employee, and we therefore
    and the offense of conviction was motivated by such           AFFIRM the judgment of the district court.
    status . . . increase by 3 levels.
United States Sentencing Guidelines Manual § 3A1.2(a)
(1991). The version of § 1114 in effect before 1992 made
killing any one of a number of designated federal officers a
federal crime. See 18 U.S.C. § 1114 (1994). It included
among those officers specially protected federal judges,
United States Attorneys and Assistant Attorneys, United
States marshals, FBI agents, other Department of Justice
employees, Postal Service agents, and other employees of
various federal agencies. See id. Hudspeth argues that
§ 1114 criminalized only the killing of these officers “on
account of the performance of [their] official duties,” and not
because of their “official position,” and thus that § 3A1.2(a)
was amended to expand protection only to federal employees
from retaliatory conduct similarly based on status, not to
expand protection to state and local employees. We disagree
with Hudspeth’s parsing of the language of the version of
§ 1114 in effect in 1992, which has since been amended to
more broadly prohibit killing “any officer or employee of the
United States.” We also disagree with his argument that, in
this context, “performance of official duties” may be
meaningfully distinguished from “official position.” Nothing
