_____________ No. 96-1826WM

_____________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Western * District of Missouri. Jerry R. Poe, * * Appellant. *

_____________ Submitted: September 9, 1996 Filed: September 19, 1996

_____________ Before FAGG, HEANEY, and BEAM, Circuit Judges.

_____________ 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 prisonofficials would be "shot and crip[p]led." Based on the t wo letters, the Government charged Poe with two counts of mailin g threat ening communications in violation of 18 U.S.C. § 876 (1994)
. Following jury convic tions on both counts, the district court granted the Government's request for an upward departure from the sentencing guideline s and sentenced Poe to the statutory maximum penalty of five years on each count. See id. ; U.S.S.G. § 4A1.3 (1994). Poe a ppeals his convictions and sentence, and we affirm.
On appeal, Poe admits writing and ma iling both letters, but contends the district court should have granted his motion for judgment of acquitta l because his letters were ambiguous and

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nonthreatening. Afte r 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 lo cal prosecutor made vulgar sexua l remarks about the prosecutor and the sexual anatomy of th e prosecutor's young daughter, pointed out Poe wou ld be released from prison soon, and stated the prosecutor would "pay" for mistreating Poe. Th e letter concluded by referring to the prosecutor's upcoming move to the Eas t 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 threat ening 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 threa t 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 var ious prison officials. Id. Poe's current claim that he did no t really intend to shoot the prison officials is s imply irrelevant. See id. at 86; Whitfield , 31 F.3d at 749. Thus, we conclude the district cour t properly denied Poe's motion.
As for Poe's sentence, the sentencin g guidelines authorize an upward dep arture "[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 lik elihood that the defendant will comm it other crimes." U.S.S.G. § 4A1.3. In arriving at Poe' s senten ce, the district court was concerned with Poe's "pattern o f contin ually criminal behavior." As the presentence report makes clear , Poe's criminal history category does not include Poe's more recen t 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 app ropriate 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. Se e 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 t he record, we conclude the district court did not abuse it s discre tion by granting the Government's request for an upward departur e und er § 4A1.3. Cook , 972 F.2d at 222 (the district court may make a n upward departure where there is evidence of obvious, unrepentan t incorrigibility).
We thus affirm Poe's convictions and sentence.
A true copy.

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