1

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-60590

UNITED STATES OF AMERICA

Plaintiff-Appellee,

VERSUS

FREDERICK STEVENSON

a/k/a

FREDRICK STEVENSON

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

October 17, 1997

Before REYNALDO G. GARZA, SMITH, and WIENER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

This is an appeal from the United States District Court for

the Southern District of Mississippi, Chief Judge William H.

Barbour, Jr., presiding. The Defendant-Appellant, Frederick

Stevenson (“Stevenson”), was found guilty in June of 1996 on a onecount indictment in which he was charged with threatening to

assault a federal probation officer while she was engaged in her

official duties, in violation of Title 18, U.S.C. §115(a)(1)(B).

Judge Barbour sentenced Stevenson to 36 months imprisonment, a $50
2

special assessment, and a one year term of supervised release, upon

completion of the jail sentence. Stevenson now appeals. Based on

our analysis of the pleadings, briefs, and record on file, we

AFFIRM the decision of the district court.

Background

Frederick Stevenson was placed under the supervision of a

United States Probation Officer named Rebecca Hart Gormley

(“Gormley”) in November of 1994. In January of 1995, Stevenson was

taken into custody, a fact Gormley says she learned of on January

30, 1995. According to the Appellant’s Brief, Stevenson tried to

contact Gormley on several occasions during his custody for the

purpose of finding out how his incarceration would affect his

federal probation. Stevenson claims that he wrote Gormley four or

five letters attempting to contact her. The Plaintiff-Appellee’s

brief states that Gormley received only one letter (other than the

one which caused this controversy), and Gormley never visited

Stevenson in jail.

In March of 1995, Gormley received the following letter from

Stevenson:

Dear Rebecca,

This is Frederick. Say why the fuck you

won’t do your job, bitch. You need to

get your ass over here to see me before I

beat the shit out of you. If you don’t

comply I will go through the motions of

what I just wrote.

This letter frightened and alarmed Gormley. In April of 1995,

Stevenson acknowledged that the letter was his creation to FBI
3

agent Floyd Plummer (“Plummer”), and stated that he was sorry for

writing the letter. He further stated that he had no intention of

carrying out his threat, and that he wrote the letter because he

wanted to get a response from Gormley. In June of 1995, Stevenson

sent a letter to Assistant U.S. Attorney Dolan Self (“Self”)

apologizing for the letter. These actions on the part of Stevenson

did not change Gormley’s feelings of fear and alarm.

On September 7, 1995, Stevenson was indicted and charged with

threatening to assault a federal probation officer. At Stevenson’s

trial, agent Plummer testified that he acquired fingerprint and

handwriting samples from Stevenson. An FBI fingerprint specialist

identified a latent fingerprint on the letter as matching

Stevenson’s prints, and an FBI document examiner testified that the

contents of the letter and its envelope were written by Stevenson.

Plummer also testified that Stevenson admitted writing the letter.

Stevenson was subsequently found guilty by the jury on June 6,

1996, and Judge Barbour handed down the sentence previously listed.

Stevenson timely filed for an appeal, and the case now stands

before this Circuit.

Standard of Review

The standard of review we apply is whether a rational trier of

fact could have found that the evidence established guilt beyond a

reasonable doubt. United States v. Ivey, 949 F.2d 759, 766 (5th

Cir. 1991), cert. denied, 506 U.S. 819 (1992). All evidence and

inferences from the evidence are to be viewed in the light most
4

favorable to the government. Id.; United States v. Maseratti, 1

F.3d 330, 337 (5th Cir. 1993), cert. denied, 510 U.S. 1129 (1994).

The evidence need not exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except

that of guilt, and this court will accept all credibility choices

that tend to support the verdict. United States v. Pofahl, 990

F.2d 1456, 1467 (5th Cir. 1993), cert. denied, 510 U.S. 898 (1993).

In regard to sentencing, the standard of review for the

district court’s application of the sentencing guidelines is de

novo and the district court’s findings of fact are reviewed for

clear error. United States v. Wimbish, 980 F.2d 312, 313 (5th Cir.

1992), cert. denied, 508 U.S. 919 (1993). The district court’s

factual findings are not clearly erroneous if they are plausible in

light of the record read as a whole. United States v. Watson, 966

F.2d 161, 162 (5th Cir. 1992). The district court’s findings will

be deemed clearly erroneous only if the appellate court is left

with the definite and firm conviction that an error has been made.

Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993).

Discussion and Analysis

1. The evidence supports the conviction.

Stevenson claims that the government failed to prove he had

the necessary intent to be convicted under that statute. He

argues that his letter was merely one written out of frustration,

and that he intended that Gormley carry out her duties (as he saw

them) rather than impede the performance of her duties. He also
5

states that his incarceration made it impossible for him to carry

out his threats toward Gormley. He states that these facts,

coupled with the fact that Gormley was an armed law enforcement

officer, showed a lack of necessary intent, and hence, his

conviction should be overturned. 

Stevenson did not cite a single case in his brief which

would support his arguments, and his arguments fail on their own. 

First of all, it is certainly reasonable to believe that a person

who received a letter such as that which was sent to Gormley

would be frightened and intimidated from performing his or her

tasks, and that such fear and intimidation would be the goal of

the person who wrote the letter. Under 18 U.S.C. § 115(a)(1)(B),

the key point is whether the defendant intentionally communicated

the threat. The Ninth Circuit has stated that the “only intent

requirement is that the defendant intentionally or knowingly

communicates his threat, not that he intended or was able to

carry out his threat.” United States v. Orozco-Santillan, 903

F.2d 1262, 1265 (9th Cir. 1990); see also United States v.

Roberts, 915 F.2d 889, 890 (4th Cir. 1990), cert. denied, 498

U.S. 1122 (1991). This Circuit stated a similar standard

regarding intent in the context of 18 U.S.C. §871, criminalizing

threats to the President. United States v. Pilkington, 583 F.2d

746, 747 (5th Cir. 1978), cert. denied, 440 U.S. 948 (1979)

All the government had to show was that this threat was

intentionally communicated, not that the threat was credible or

could be immediately carried out. This intent can be proven by
6

direct or circumstantial evidence which allows for an inference

of criminal intent. United States v. Aggarwal, 17 F.3d 737, 740

(5th Cir. 1994). The content, tone, and language of the letter

could certainly lead a reasonable jury to infer that a threat was

intentionally made, and the fact that it was deliberately written

by Stevenson and mailed to Gormley’s courthouse office only

serves to support the jury’s verdict.

Also, the fact that Stevenson was in jail at the time is

irrelevant, especially given that a reasonable person could fear

that the threatened violence would occur upon Stevenson’s

release. Indeed, one could argue that the fact he was in jail

made the letter all the more frightening, with Gormley living in

fear that Stevenson was simmering in his rage and hatred during

the long hours of bad food, cold showers, and weight-lifting that

make up a prisoner’s day, and that the rage he felt would explode

on her the second he was released from jail. Therefore, his

incarceration does not destroy a possibility of criminal intent

under the statute.

Stevenson also argues that he was only acting to implore

Gormley to do her job rather than impede her, and that Gormley’s

status as an armed and trained law enforcement officer should

have led her not to take the threat seriously. These arguments

are, respectively, silly and irrelevant, and have been disposed

of in the previous analysis.

2. The sentence was appropriate.

Section 2A6.1(b)(2) of the statute states that if the
7

defendant’s actions were “a single instance evidencing little or

no deliberation,” his sentence should be adjusted downward four

levels, and the Background to the Application Note provides that

the likelihood that the defendant could carry out the threat can

be used to distinguish among cases. U.S.S.G. §2A6.1(b)(2). In

Stevenson’s case, this would yield a sentence of 27-33 months,

less than the maximum term to which he was sentenced. Stevenson

argues (once again, without a single case cited to support his

point) that his action was an example of the single, spontaneous,

non-deliberated act that is supposed to yield a lower sentence.

We believe that the district court committed no reversible

error in denying a reduction in sentencing. The facts argue

strongly against Stevenson. His actions involved the deliberate

securing of stationary and postage, the composition of a letter,

the search for an address, and the act of taking the letter to be

mailed. It was not a spontaneous, momentary action done out of

opportunity or impulse. There were many steps along the way in

which he could have stopped himself, but he didn’t. The fact

that this is only one letter does not win the day for Stevenson,

because the statute does not state that the fact an act is a

single instance in itself lowers the penalty. Further, his

subsequent apologies, even if they are sincere, do not change the

nature of what he did, and therefore should not enter into the

sentencing analysis. The findings of the district court are

plausible, and do not rise to the level of clear error.

In a similar case, the United States District Court in
8

Minnesota refused to downwardly adjust the sentence of a man

(under §2A6.1(b)(2)) who sent threatening letters, on the ground

that

[T]he process of obtaining an address,

conveying his thoughts onto paper, taking

that paper to a mailbox, and mailing the

letter shows the deliberation that was

involved. This process is different than

making a single oral threat on the spur of

the moment, or other conduct which might

warrant the reduction.

United States v. Bellrichard, 801 F.Supp. 263, 265 (D.Minn.

1992), aff’d 994 F.2d 1318 (8th Cir. 1993), cert. denied, 510

U.S. 928 (1993). Similarly, the Ninth Circuit held that a man

who, while drunk, sent several threatening, racist, and antiSemitic letters to various people had sufficient deliberation to

preclude reduction in sentencing. As that court stated, writing

such letters “does not require intelligent thought, it [does

require] some time and attention,” and accordingly, the sentence

was not reduced. United States v. Sanders, 41 F.3d 480, 485 (9th

Cir. 1994), cert. denied, 514 U.S. 1132 (1995); see also United

States v. Edgin, 92 F.3d 1044, 1047 (10th Cir. 1996), cert.

denied, 1175 S.Ct. 714 (1997).

A noteworthy case regarding the issue of a defendant’s

degree of deliberation is United States v. Horton, 98 F.3d 313

(7th Cir. 1996), cert. denied, 1175 S.Ct. 714 (1997). In this

case, a conviction for making a bomb threat in a federal building

was vacated by the Seventh Circuit. We believe Horton is

distinguishable on this point because the Seventh Circuit was

troubled by the fact this seemed to be a spontaneous statement by
 

*Our holding should not be read to preclude the possibility

that a written communication, standing alone, could be sufficiently

lacking in deliberation to entitle its author to a four-level

reduction under §2A6.1(b)(2).

9

a man who was upset at having to wait in line to get into the a

federal building (the Oklahoma City Bombing occurred the previous

day, and security had been tightened), and the court remanded for

further analysis. Id. at 320. The case at bar differs from

Horton in that, as stated, Stevenson went through various steps

at which he could have stopped, and his actions were not the

impulsive act of someone momentarily losing their temper. 

Conclusion

The prosecution met its evidentiary burden in this case, and

the sentence handed down was appropriate. Stevenson’s actions

were, by his own admission, intended to get a response from

Gormley, and his actions were not so spontaneous or lacking in

deliberation as to warrant a lower sentence. A rational trier of

fact certainly could have (and did) find Stevenson guilty beyond

a reasonable doubt. Further, the district court’s decision on

sentencing was not clearly erroneous.* Therefore, the decision

of the district court is AFFIRMED.

AFFIRMED.