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No. 96-1826WM

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Jerry R. Poe, * 

*

Appellant. *

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Submitted: September 9, 1996

 Filed: September 19, 1996

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Before FAGG, HEANEY, and BEAM, Circuit Judges.

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FAGG, Circuit Judge.

Jerry R. Poe mailed two threatening letters from his jail cell in a

Missouri state prison. In his first letter, Poe threatened to assault a

local prosecutor's twelve-year-old daughter, and in his second letter, Poe

stated several prison officials would be "shot and crip[p]led." Based on

the two letters, the Government charged Poe with two counts of mailing

threatening communications in violation of 18 U.S.C. § 876 (1994).

Following jury convictions on both counts, the district court granted the

Government's request for an upward departure from the sentencing guidelines

and sentenced Poe to the statutory maximum penalty of five years on each

count. See id.; U.S.S.G. § 4A1.3 (1994). Poe appeals his convictions and

sentence, and we affirm.

On appeal, Poe admits writing and mailing both letters, but contends

the district court should have granted his motion for judgment of acquittal

because his letters were ambiguous and
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nonthreatening. After reviewing the evidence in the light most favorable

to the Government, see United States v. Whitfield, 31 F.3d 747, 749 (8th

Cir. 1994), we disagree. Poe's letter to the local prosecutor made vulgar

sexual remarks about the prosecutor and the sexual anatomy of the

prosecutor's young daughter, pointed out Poe would be released from prison

soon, and stated the prosecutor would "pay" for mistreating Poe. The

letter concluded by referring to the prosecutor's upcoming move to the East

Coast, and asked, "Can you please send me your daughter's address?" The

prosecutor testified he was upset by Poe's letter because he believed Poe

was threatening to harm his daughter. We agree with the prosecutor's

assessment. "Under the totality of the circumstances, a reasonable jury

could conclude beyond a reasonable doubt that the letter contained a threat

to [the prosecutor's daughter]." United States v. Manning, 923 F.2d 83,

85 (8th Cir.), cert. denied, 501 U.S. 1234 (1991). Likewise, a reasonable

jury could conclude that Poe's second letter contained a threat to wound

the various prison officials. Id. Poe's current claim that he did not

really intend to shoot the prison officials is simply irrelevant. See id.

at 86; Whitfield, 31 F.3d at 749. Thus, we conclude the district court

properly denied Poe's motion. 

As for Poe's sentence, the sentencing guidelines authorize an upward

departure "[i]f reliable information indicates that the [defendant's]

criminal history category does not adequately reflect the seriousness of

the defendant's past criminal conduct or the likelihood that the defendant

will commit other crimes." U.S.S.G. § 4A1.3. In arriving at Poe's

sentence, the district court was concerned with Poe's "pattern of

continually criminal behavior." As the presentence report makes clear,

Poe's criminal history category does not include Poe's more recent

threatening letters to the probation office, the Missouri Supreme Court,

and the Governor of Missouri. See United States v. Sweet, 985 F.2d 443,

445-46 (8th Cir. 1993) (upward departure was appropriate because defendant

continued to mail threatening letters after conviction but before
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sentencing). Also, Poe does not deny telling his probation officer that

he plans to send more threatening letters to the victims in this case. See

United States v. Cook, 972 F.2d 218, 221-22 (8th Cir. 1992), cert. denied,

506 U.S. 1058 (1993). We review the district court's decision to depart

from the sentencing guidelines for an abuse of discretion, see Koon v.

United States, 116 S. Ct. 2035, 2047-48 (1996), and the decision "will in

most cases be due substantial deference," id. at 2046. Having carefully

reviewed the record, we conclude the district court did not abuse its

discretion by granting the Government's request for an upward departure

under § 4A1.3. Cook, 972 F.2d at 222 (the district court may make an

upward departure where there is evidence of obvious, unrepentant

incorrigibility). 

We thus affirm Poe's convictions and sentence.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.