1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0112P (6th Cir.)File Name: 00a0112p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________UNITEDSTATES OFAMERICA,Plaintiff-Appellee,v.CHARLESH.HUDSPETH,Defendant-Appellant.;>1No. 98-4515Appeal from the United States District Courtfor the Southern District of Ohio at Cincinnati.No. 97-00086—Herman J. Weber, District Judge.Submitted: February 4, 2000Decided and Filed: March 30, 2000Before: WELLFORD, BATCHELDER, andDAUGHTREY, Circuit Judges._________________COUNSELON BRIEF:Richard W. Smith-Monahan, OFFICE OF THEFEDERAL PUBLIC DEFENDER, SOUTHERN DISTRICTOF OHIO, Cincinnati, Ohio, for Appellant. Terry Lehmann,ASSISTANT UNITED STATES ATTORNEY, Cincinnati,Ohio, for Appellee.2United States v. HudspethNo. 98-4515DAUGHTREY, J., delivered the opinion of the court, inwhich BATCHELDER, J., joined. WELLFORD, J. (pp. 6-7),delivered a separate concurring opinion._________________OPINION_________________MARTHA CRAIG DAUGHTREY, Circuit Judge. Thedefendant, 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 BACKGROUNDIn 1997, Charles Hudspeth was indicted on two counts ofmailing 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 tofederalemployees, not to state or localNo. 98-4515United States v. Hudspeth7States v. Stanley, 24 F.3d 1314 (11th Cir. 1994), cited by thegovernment in its brief, all involved law enforcement officialsand did not involve the guideline in question.United Statesv. Muhammed, 948 F.2d 1449 (6th Cir. 1991), involved theformer version of § 3A1.2, and the defendant assaulted a lawemployment official in the course of attempted bank robberyof a federally insured bank in that case. It is not pertinent tothe circumstances of this case, in my view.Strangely, neither the statute under which defendant wasconvicted nor the indictment itself presented under 18 U.S.C.§ 876 makes mention of the threat being caused, motivated,or engendered by reason of the victim’sofficialstatus. Theapplicable part of the statute refers to a “threat” addressed to“any other person to injure the person” through the use of themail. The indictment tracks the statute and makes no mentionof the language contained in guideline § 3A1.2, which refersto the threat’s being “motivated by such [official] status.”Under the circumstances, it is with trepidation and someuncertainty that I join the majority opinion.6United States v. HudspethNo. 98-45151Before the amendment, I could see more reason for enhancementwhen the threatened party was a “law enforcement or corrections officer”of a state agency.______________________CONCURRENCE______________________HARRY W. WELLFORD, Circuit Judge, concurring. Ireluctantly 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 ofthe United States.” (Emphasis added.) Why thefederalguidelines should have special concern about threatsto local or county officials and employees and enhancefederalpenalties by reason of such factor escapes me,particularly in the absence of specific language that a“government officer or employee” includes anon-federalgovernment official or employee.1Should 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.TheStewartcase, cited in support by the majority, involvedthreats 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 inAmanmade the directchallenge made by Hudspeth in this case.United States v. Garcia, 34 F.3d 6 (1st Cir. 1994);UnitedStates v. Alexander, 48 F.3d 1477 (9th Cir. 1995), andUnitedNo. 98-4515United States v. Hudspeth3employees, and thus that his conduct in mailing threateningcorrespondence to Deters was not covered by this provision.DISCUSSIONSection 3A1.2(a) states “If . . . the victim was a governmentofficer or employee; a former government officer oremployee; or a member of the immediate family of any of theabove, and the offense of conviction was motivated by suchstatus . . . increase by 3 levels.” The question of whether§ 3A1.2(a), one of a number of guidelines provisionsrequiring victim-related adjustments to federal sentences,applies to cases where the victim is a state or local employeeis apparently one of first impression in this circuit, althoughother federal appeals courts have held that the provision doescover such cases.SeeUnited States v. Stewart, 20 F.3d 911,918 (8th Cir. 1994);cf.United States v. Aman, 31 F.3d 550,556 (7th Cir. 1994). Based on our de novo review of thedistrict court’s sentencing order,seeUnited States v. Talley,164 F.3d 989, 1003 (6th Cir.),cert. denied, 119 S. Ct. 1793(1999), we see little ambiguity in applying the plain languageof the provision to these facts: Joseph Deters was a countygovernment employee, and Hudspeth’s admitted criminalconduct was motivated by Deters’s status as “a governmentofficer or employee.” Moreover, we agree with the EighthCircuit that, as a matter of policy, there is “absolutely no basisfor limiting the guideline,” and whatever deterrent effect maybe presumed from its promulgation, in this manner.SeeStewart, 20 F.3d at 918.Hudspeth argues that, under the rule of lenity, we shouldconstrue this purportedly ambiguous guidelines provision inhis favor. Although we do apply the rule of lenity to mattersrelating to the sentencing guidelines,seeUnited States v.Sanders, 162 F.3d 396, 402 (6th Cir. 1998), and, indeed, havenot hesitated in the past to apply the rule to decisionsregarding criminal sanctions,seeUnited States v. Morton, 17F.3d 911, 915 (6th Cir. 1994), the rule of lenity is generallyinapplicable unless, “after a court has ‘seize[d] [on] everything from which aid can be derived,’ it is still left with an4United States v. HudspethNo. 98-4515ambigu[ity].”Chapman v. United States, 500 U.S. 453, 463(1991) (quotingUnited States v. Bass, 404 U.S.336, 347(1971)).We believe both that the meaning of § 3A1.2(a) is clear andthat 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.See18 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.Seeid.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.” NothingNo. 98-4515United States v. Hudspeth5else in the structure of the guidelines or the history of theiramendments supports Hudspeth’s position, and his “mereassertion of an alternative interpretation of a sentencingguideline is not enough to bring the rule [of lenity] into play.”United States v. Tagore, 158 F.3d 1124, 1128 n.3 (10th Cir.1998).Although we recognize that, according to the pre-sentencereport recommending enhancement, the target of thethreatening communications in this case apparently sufferedlittle or no injury from the receipt of the threats, we concludethat application of § 3A1.2(a) depends on the victim’s status,not on whether he or she suffered harm. We hold that federalcriminal sentences may be enhanced pursuant to § 3A1.2(a)if the underlying conduct was motivated by the victim’s statusas a state or local government employee, and we thereforeAFFIRM the judgment of the district court.