1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHARLES H. HUDSPETH,

Defendant-Appellant.

Appeal from the United St

for the Southern District of 

No. 97-00086—Herman J. W

Submitted: Februa

Decided and Filed: M

Before: WELLFORD, BA

DAUGHTREY, Cir

____________

COUNSE

ON BRIEF: Richard W. Smith-MFEDERAL PUBLIC DEFENDEROF OHIO, Cincinnati, Ohio, for AASSISTANT UNITED STATES Ohio, for Appellee. 
2 United States v. Hudspeth No. 98-4515

DAUGHTREY, J., delivered the opinion of the court, in

which BATCHELDER, J., joined. WELLFORD, J. (pp. 6-7),delivered a separate concurring opinion.

_________________

OPINION

_________________

MARTHA CRAIG DAUGHTREY, Circuit Judge. The

defendant, Charles Howard Hudspeth, appeals his sentence of21 months’ incarceration and three years’ supervised release,imposed as a result of his conviction for mailing threateningcommunications in violation of 18 U.S.C. § 876 (1994).Hudspeth alleges that the district court impermissiblyenhanced his sentence pursuant to United States SentencingGuideline § 3A1.2(a), which mandates an increase of threesentencing levels if the victim of federal criminal conduct was“a government officer or employee.” We find no error and,for the reasons set out below, we affirm the district court’sjudgment.

PROCEDURAL AND FACTUAL BACKGROUND

In 1997, Charles Hudspeth was indicted on two counts of

mailing threatening communications to Joseph Deters, aprosecuting attorney for Hamilton County, Ohio, in part forDeters’s presumed participation in Hudspeth’s prosecution onstate criminal charges. As part of a plea agreement with thegovernment, Hudspeth pleaded guilty to one count of theindictment. The district court sentenced Hudspeth to 21months’ incarceration in federal prison, to be servedconsecutively with Hudspeth’s ongoing state prison sentenceand to be followed by a three-year term of supervised release.The court enhanced Hudspeth’s sentence by three levelspursuant to § 3A1.2(a) of the sentencing guidelines, entitled“Official Victim,” because Joseph Deters was “a governmentofficial of Hamilton County.” On appeal, Hudspeth claimsthat the term “government officer or employee” in § 3A1.2(a)refers only to federal employees, not to state or local

No. 98-4515 UniteStates v. Stanley, 24 F.3d 1314 (11government in its brief, all involved and did not involve the guideline iv. Muhammed, 948 F.2d 1449 (6tformer version of § 3A1.2, and the employment official in the course of a federally insured bank in that the circumstances of this case, in m

Strangely, neither the statute un

convicted nor the indictment itself § 876 makes mention of the threaor engendered by reason of the viapplicable part of the statute refers “any other person to injure the persmail. The indictment tracks the staof the language contained in guideto the threat’s being “motivated by 

Under the circumstances, it is w

uncertainty that I join the majority 
6 United States v. Hudspeth No. 98-4515

1Before the amendment, I could see more reason for enhancement

when the threatened party was a “law enforcement or corrections officer”of a state agency.

______________________

CONCURRENCE

______________________

HARRY W. WELLFORD, Circuit Judge, concurring. I

reluctantly concur in my colleague’s opinion in this case.Were I writing on a clean slate, my view would be contrary tothat of the majority. It seems to me that the guideline inquestion, § 3A1.2(a), goes far beyond the import of 18 U.S.C.§ 1114, which deals with “protection of officers andemployees of the United States.” (Emphasis added.) Why the

federal guidelines should have special concern about threatsto local or county officials and employees and enhancefederal penalties by reason of such factor escapes me,particularly in the absence of specific language that a“government officer or employee” includes a non-federal

government official or employee.1 Should the federalsentencing guidelines bring about a particular enhancement toa federal sentence for threats to a municipal secretary or asanitation worker or his or her immediate family? I think notas a matter of logic and federalism.

The Stewart case, cited in support by the majority, involved

threats made to an Arkansas Department of Correctionsofficial in a federal courthouse. One can see a federalconnection in such a case with 18 U.S.C. § 1114. UnitedStates v. Aman, 31 F.3d 550, 536 (7th Cir. 1994), doesdescribe the 1992 amendment to the guideline in question as“greatly” expanding those who could be an “official victim”and cause a federal sentence enhancement. It does not appear,however, that the defendant in Aman made the direct

challenge made by Hudspeth in this case.

United States v. Garcia, 34 F.3d 6 (1st Cir. 1994); United

States v. Alexander, 48 F.3d 1477 (9th Cir. 1995), and United

No. 98-4515 Uniteemployees, and thus that his condcorrespondence to Deters was not 

DISCUSSI

Section 3A1.2(a) states “If . . . th

officer or employee; a former employee; or a member of the immabove, and the offense of convictistatus . . . increase by 3 levels.” § 3A1.2(a), one of a number requiring victim-related adjustmeapplies to cases where the victim iis apparently one of first impressioother federal appeals courts have hcover such cases. See United State918 (8th Cir. 1994); cf. United Sta556 (7th Cir. 1994). Based on oudistrict court’s sentencing order, s164 F.3d 989, 1003 (6th Cir.), cer

(1999), we see little ambiguity in aof the provision to these facts: Jogovernment employee, and Hudsconduct was motivated by Deters’officer or employee.” Moreover, Circuit that, as a matter of policy, thfor limiting the guideline,” and whbe presumed from its promulgat

Stewart, 20 F.3d at 918.

Hudspeth argues that, under the 

construe this purportedly ambiguohis favor. Although we do apply trelating to the sentencing guideliSanders, 162 F.3d 396, 402 (6th Cinot hesitated in the past to appregarding criminal sanctions, see UF.3d 911, 915 (6th Cir. 1994), the inapplicable unless, “after a courthing from which aid can be deriv
4 United States v. Hudspeth No. 98-4515

ambigu[ity].” Chapman v. United States, 500 U.S. 453, 463(1991) (quoting United States v. Bass, 404 U.S.336, 347(1971)). 

We believe both that the meaning of § 3A1.2(a) is clear and

that the history of the provision affirms our conclusion thatconduct motivated by the work of state and local employees,or by their status as employees, is covered by this guideline.Section 3A1.2(a) was last amended in 1992; pre-amendment,it stated:

If . . . the victim was a law enforcement or correctionsofficer; a former law enforcement or corrections officer;an officer or employee included in 18 U.S.C. § 1114; aformer officer or employee included in 18 U.S.C. § 1114;or a member of the immediate family of any of the above,and the offense of conviction was motivated by suchstatus . . . increase by 3 levels.

United States Sentencing Guidelines Manual § 3A1.2(a)(1991). The version of § 1114 in effect before 1992 madekilling any one of a number of designated federal officers afederal crime. See 18 U.S.C. § 1114 (1994). It includedamong those officers specially protected federal judges,United States Attorneys and Assistant Attorneys, UnitedStates marshals, FBI agents, other Department of Justiceemployees, Postal Service agents, and other employees ofvarious federal agencies. See id. Hudspeth argues that

§ 1114 criminalized only the killing of these officers “onaccount of the performance of [their] official duties,” and notbecause of their “official position,” and thus that § 3A1.2(a)was amended to expand protection only to federal employeesfrom retaliatory conduct similarly based on status, not toexpand protection to state and local employees. We disagreewith Hudspeth’s parsing of the language of the version of§ 1114 in effect in 1992, which has since been amended tomore broadly prohibit killing “any officer or employee of theUnited States.” We also disagree with his argument that, inthis context, “performance of official duties” may bemeaningfully distinguished from “official position.” Nothing

No. 98-4515 Uniteelse in the structure of the guideliamendments supports Hudspeth’assertion of an alternative interpguideline is not enough to bring the United States v. Tagore, 158 F.3d 

1998).

Although we recognize that, acc

report recommending enhancemthreatening communications in thilittle or no injury from the receipt othat application of § 3A1.2(a) depenot on whether he or she suffered hcriminal sentences may be enhancif the underlying conduct was motivas a state or local government emAFFIRM the judgment of the distr