In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2381

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID H. ENGLAND,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois.

No. 04 CR 50068—Philip G. Reinhard, Judge.

____________

ARGUED SEPTEMBER 24, 2007—DECIDED NOVEMBER 7, 2007

____________

Before POSNER, FLAUM and WOOD, Circuit Judges.

FLAUM, Circuit Judge. On September 15, 2004,

defendant-appellant David England, a convicted felon,

smashed his neighbor’s car window with the butt of a gun

and then discharged the gun into the air. England was

soon arrested and, while in prison, he campaigned over

the prison phone to get his sister, brother-in-law and

father to hide evidence and create an alibi for him. When

he learned that his brother-in-law was instead cooperating

in the investigation, he made threats to kill him.

For his efforts, a grand jury returned a four-count

indictment. The indictment charged one count of unlawful

possession of a firearm by a felon under 18 U.S.C. § 922(g),
2 No. 06-2381

two counts of witness tampering in violation of 18 U.S.C.

§ 1512(b), and one count of threatening physical force

with the intent to prevent the testimony of a witness in

violation of 18 U.S.C. § 1512(a)(2)(A). At trial, England

proceeded without counsel and, on January 6, 2006, a jury

convicted him of all counts. The district court then sentenced England to 262 months imprisonment.

England now appeals, challenging the sufficiency of the

evidence underlying his conviction for the threats, the

voluntariness of his decision to represent himself, and the

reasonableness of his sentence. For the reasons set out

below, we affirm his conviction and the district court’s

finding of a voluntary waiver of his right to counsel.

However, because the district court did not consider

the potential disparity that may arise from England’s

sentence, we vacate his sentence and remand for

resentencing.

I. Background

On September 15, 2004, defendant-appellant David

England was investigating a recently broken window in

his mother’s home. He had confronted four neighbors

about the incident and tried to get one to admit to breaking the window. When his efforts to elicit a confession

failed, he evened the score by shattering two car windows

in a nearby car and firing a gun into the air. One of the

onlookers notified the police and, a week later, the police

apprehended England at a gas station where he had

stopped to refuel. The police opted not to impound the

car he was driving—his mother’s Pontiac Grand Am—

and it remained parked at the gas station. Based on the

onlookers’ statements, a grand jury indicted England

for being a felon in possession of a firearm.

While in custody, England called his sister, Dawn Bull,

regarding the Grand Am. He asked his sister to move the
No. 06-2381 3

car to his grandmother’s house and “put a tarp over it.”

Later that day and again on September 25, he called his

brother-in-law, Robert Bull, inquiring as to the whereabouts of the car and telling Bull not to let anyone use

it. On September 26, after moving the car, England’s

sister and mother found a blue duffle bag in the engine

compartment. Concerned about the contents of the bag,

they flagged down a police officer who removed it and

found a bloodied gun inside. The police conducted DNA

analysis on the recovered blood and matched the sample

to England.

News of the gun’s recovery did not sit well with England;

he immediately grew concerned that his sister and mother

were cooperating with the police. On September 27, he

called his brother-in-law and told him to make sure that

his sister and his mother “don’t get out o’ hand” and told

him to “control them women.” Later, on November 1, he

also asked his sister to corroborate his alibi, saying that

he did not “understand why a . . . couple of my family

members can’t . . . recognize they were up there at Barnes

and Noble that particular day, and they seen me up there.”

Dawn refused.

On December 15, England learned that his brother-inlaw had been cooperating with the police and he boiled

over. He could not call his brother-in-law directly as

Bull had blocked all calls coming from the prison. So

England called his father instead. He told his father that

he would “put some bullets in somebody’s head” and asked

his father to “talk with [Bull] man to man.” On December

27, he went further, asking his father to “go relay a

message to Robert” that if he “shows up to court, when

I walk outta prison in fifteen years, I’m ’onna fuckin’

murder his motherfuckin’ ass.” At trial, England’s father

would testify that he never relayed these threats to Bull.

In fact, Bull would not learn of England’s statements

until the government alerted him later in the investiga-
4 No. 06-2381

tion. Nonetheless, based on these threats and England’s

efforts to procure an alibi, on March 1, 2005, a grand jury

issued a superseding indictment, tacking on two counts of

witness tampering and one count of threatening a witness.

During his initial appearance for the felon-in-possession

charge, the court appointed England an attorney, Paul

Flynn. During England’s continued detention hearing on

February 8, Flynn advised the magistrate judge that

England wanted to represent himself, despite Flynn’s

advice to the contrary. Near the end of the hearing, the

magistrate questioned England extensively on his decision to represent himself. During the colloquy, England

stated that he had studied the law off and on for several

years and had helped with his prior criminal trials. He

said that he was familiar with the Federal Rules of

Evidence and Criminal Procedure and knew that the

judge would not assist him during the trial. Finally,

England said that he understood the evidence that the

government would offer and, despite the magistrate’s

opinion that he would be better served by a lawyer, he

wanted to represent himself. When Flynn expressed his

concern that England only wanted to represent himself

to move to a separate prison, the magistrate inquired

further and clarified that self-representation would not

impact his location. Satisfied by England’s responses

and convinced that the waiver was voluntary, the magistrate permitted England to proceed pro se with Flynn as

standby counsel.

The next week, on February 14, the district court held

another pre-trial proceeding to determine whether England had knowingly and voluntarily waived his right to

counsel. The court expanded upon the magistrate’s questioning, including an inquiry into England’s personal

history; his education and family background; various

aspects of the trial such as the marshaling of evidence and

the function of opening statements; and England’s famil-
No. 06-2381 5

1 The base offense level set out in 2J1.2(a) is 14, with 8 levels

added by 2J1.2(b)(1)(A) “[i]f the offense involved causing or

threatening to cause physical injury to a person, or property

damage, in order to obstruct the administration of justice.”

iarity with the charges and potential sentencing issues

that could arise. The district court also concluded that

England would be better off with an attorney and so

informed England. Following the questioning, England

remained convinced that he wanted to represent himself.

The extensive questioning satisfied the court that England’s waiver was voluntary, and the court allowed

him to proceed pro se. After England claimed that he

was having problems with Flynn, the court appointed new

full-time counsel, Dennis Ryan. On December 29, 2005,

England again requested to represent himself and, after

determining that this was done knowingly and voluntarily,

the court complied, appointing Ryan as standby counsel. The case went to trial on January 3, 2006. On January

6, the jury convicted England on all counts.

At sentencing, the court requested briefing on the

appropriate Guidelines section to apply to Count

IV—threatening physical force with the intent to prevent

the testimony of a witness. The government and the

presentence investigation report initially stated that

U.S.S.G. § 2A2.1(a)(1) was appropriate. This section

covers “Assault with Intent to Commit Murder; Attempted

Murder” and has a base offense level of 33. The court,

however, directed both parties to brief whether U.S.S.G.

§ 2.J1.2 might be more appropriate. This section covers

“Obstruction of Justice” and would result in an offense

level of 22.1

 The court ultimately ruled that § 2A2.1 was

appropriate. In so doing, the court first looked to the

statutory index in Appendix A and located 18 U.S.C.

§ 1512(a). The Appendix indicated that § 1512(a) applied

to four separate Guidelines sections. The court reasoned
6 No. 06-2381

that “Assault with Intent to Commit Murder; Attempted

Murder” was the most germane and stated that it had

to “apply the offense guidelines referenced in the statutory

index to the statute of conviction unless the case falls

within the limited stipulation exception,” which was

inapplicable. Although the court found it “somewhat

difficult in this case,” it applied § 2A2.1 and set the base

offense level at 33. The court declined to lower the sentence under 18 U.S.C. § 3553(a) and sentenced England

to 262 months. This appeal followed.

II. Discussion

A. Waiver of Right to Counsel

England argues that he did not knowingly and voluntarily waive his right to counsel. The right to represent

oneself is “necessarily implied by the structure” of the

Sixth Amendment. Faretta v. California, 422 U.S. 806, 819

(1975). Although one can certainly question the wisdom

of self-representation, the right has a worthy pedigree; a

defendant’s freedom to raise his own voice in his defense

comes from the notion that some measure of individual

autonomy prevents a court from forcing an attorney upon

the defendant. Id. However lofty this ideal may be, courts

cannot rubber-stamp a defendant’s invocation of his

right to self-representation. The district court must make

the defendant “aware of the dangers and disadvantages

of self-representation, so that the record will establish

that ‘he knows what he is doing and his choice is made

with eyes open.’ ” Id. at 835 (quoting Adams v. United

States ex rel. McCann, 317 U.S. 269, 279 (1942)).

To that end, this Court has established a four-part

test that examines: (1) whether and to what extent the

district court conducted a formal hearing into the defendant’s decision to represent himself; (2) other evidence in
No. 06-2381 7

the record that establishes whether the defendant understood the dangers and disadvantages of self-representation; (3) the background and experience of the defendant;

and (4) the context of the defendant’s decision to waive

his right to counsel. United States v. Todd, 424 F.3d

525, 530 (7th Cir. 2005). This Court reviews the district

court’s finding of voluntary waiver for an abuse of discretion, Todd, 424 F.3d at 530 n. 1, and we will not overturn

the district court’s decision “unless it would result in

fundamental unfairness impinging on due process rights,”

United States v. Irorere, 228 F.3d 816, 827 (7th Cir. 2000)

(quoting Maclin v. Freake, 650 F.2d 885, 886 (7th Cir.

1981)). Based on our review of the questions posed by the

magistrate and district court, we agree that England’s

waiver was knowing and voluntary.

As to the first factor, both the magistrate and the district court adequately informed England of exactly what

he was waiving. A court does not have to give the defendant a crash course in criminal law or trial procedure

before a defendant’s waiver of his right to counsel will be

voluntary. See Todd, 424 F.3d at 531. However, the

“failure to inform [a defendant] of the dangers and disadvantages of self-representation weighs against a finding

of a knowing or intelligent waiver.” United States v. Bell,

901 F.2d 574, 578 (7th Cir. 1990). On two occasions during the pretrial proceedings—before the magistrate and

again before the district court—England received warnings about the pitfalls of self-representation. The magistrate’s questioning tracked most, if not all, of the questions contained in the Federal Judicial Center’s Benchbook for U.S. District Court Judges. The magistrate

specifically probed England’s familiarity with the Federal

Rules of Evidence and Criminal Procedure, the nature of

the charges against him, and the law more generally. In

addition, the magistrate informed him that he would be

better served by professional counsel and retained Flynn
8 No. 06-2381

as standby counsel. Although strict adherence to the

Benchbook is not required and rote adherence not desired,

United States v. Egwaoje, 335 F.3d 579, 585 (7th Cir.

2003), the magistrate’s questioning meaningfully touched

upon all the pitfalls of self-representation set out in the

Benchbook. Six days later, the district court questioned

England again and went even further, discussing matters

ranging from the purpose of the opening statement to his

reasons for forgoing representation, possible strategies

for cross-examination, and the government’s burden of

proof. The district court’s initial investigation—spanning

thirty-three pages of transcript—provides an impressive

illustration of a formal inquiry into a defendant’s waiver

of his right to counsel. These two wide-ranging discussions

of the effects of waiver nearly a year before trial were

clearly sufficient to inform England of the consequences

of his decision.

Turning to the second factor, other evidence indicates

that England understood the consequences of his waiver.

In analyzing this factor, this Court has credited statements by the defendant regarding his own legal disability

and explanations by standby counsel of the pitfalls of selfrepresentation. United States v. Sandles, 23 F.3d 1121,

1128 (7th Cir. 1994). At the initial hearing before the

magistrate, England’s then-attorney said that he had

tried to talk England out of his decision, but England

would not listen. See United States v. Moya-Gomez, 860

F.2d 706, 735-36 (7th Cir. 1988) (crediting statements

by standby counsel in finding voluntary waiver). Before

the district court, England recognized his own legal

inability and said that he would do “about the same [as an

attorney], or I guess I’ll have to take my chances.” See

Moya-Gomez, 860 F.3d at 735 (crediting awareness of

legal disability in finding waiver). In addition, after his

own advocacy failed to gain an acquittal, England handed

the reins over to his standby counsel during sentencing,
No. 06-2381 9

saying that he did not know what he was doing. That

England recognized the risk of self-representation, after

being informed that he had made an unwise decision

by his acting attorney, provides other evidence that

England was aware of the consequences of waiver.

As to the third factor, England’s background and experience would also tend to support a finding of knowing

and voluntary waiver. This Court examines the background and experience of the defendant merely to gauge

whether he appreciated the gravity of his waiver, not

in the hopes of finding adequate legal training. See

Faretta, 422 U.S. at 835 (stating that “a defendant need

not himself have the skill and experience of a lawyer

in order competently and intelligently to choose selfrepresentation”); Egwaoje, 335 F.3d at 585-86. England’s

background indicated that he proceeded with his eyes

open. He had the equivalent of a high school education

and had thirty-six credits at a community college. A

doctor determined that he was competent to stand trial

and did not have any mental health issues that would

interfere with his ability to understand waiver. England

also had been in court several times before for his state

criminal charges. Granted this was England’s first time

in federal court and he had not represented himself in

his earlier proceedings. However, his prior involvement

with the criminal justice system apprised him of the

“seriousness of the charges brought against him.” Egwaoje,

335 F.3d at 586.

Finally, the context of England’s decision indicates

that it was knowing and voluntary. A waiver is likely

knowing and voluntary if the defendant gave it for strategic reasons or after repeatedly rejecting the assistance of

counsel. Egwaoje, 335 F.3d at 586. England’s behavior at

trial caused unnecessary delay and duplicated the proceedings. On February 8 and 14, 2005, England said that

he wanted to represent himself and the court appointed
10 No. 06-2381

Flynn as stand-by counsel. In June, he complained of

medical problems but refused to cooperate with the

doctors. On July 1, 2005, the government moved to replace Flynn as stand-by counsel after England accused

Flynn of working for the prosecution. When the court

subsequently appointed Ryan as stand-by counsel, little

improved. England refused to cooperate or even meet

with Ryan. At one point, England even spat in Ryan’s face

in open court. England’s behavior at trial seemed calculated to delay and complicate the proceedings whenever

possible. Self-representation gave him the opportunity

to do this. In light of his behavior at trial, his decision to

forgo counsel was rooted in strategy and, accordingly,

this factor favors a finding of voluntary waiver.

For the foregoing reasons, England’s waiver of his right

to counsel was knowing and voluntary. Each factor

supports a finding of voluntariness; the evidence of

voluntariness is overwhelming. Accordingly, we affirm

the district court’s finding of waiver.

B. Sufficiency of the Evidence

England also argues that the evidence was insufficient

to support his conviction for witness tampering under 18

U.S.C. § 1512(a)(2)(A). A challenge based on the insufficiency of the evidence is a tall order, United States v.

Johnson, 903 F.2d 1084, 1086 (7th Cir. 1990), and the

standard governing such challenges is familiar: This

Court must affirm a conviction if “any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt.” Id. (citing United States v.

Troop, 890 F.2d 1393, 1397 (7th Cir. 1989)) (emphasis

omitted). In other words, an appeal does not deputize

this Court as the ultimate trier of fact.

Section 1512(a)(2)(A) punishes whoever “uses physical

force or the threat of physical force against any person . . .
No. 06-2381 11

2 “Putting an expression into action or service” means simply

“expressing.” See WEBSTER’S THIRD, supra, at 802 (defining

(continued...)

with intent to . . . influence, delay, or prevent the testimony of any person in an official proceeding.” 18

U.S.C. § 1512(a)(2)(A). To sustain a conviction under

§ 1512(a)(2)(A), the government must show that (1)

England used the threat of physical force; (2) with the

intent of curtailing his brother-in-law’s involvement in

his prosecution. On appeal, the issue before this Court

is a narrow one. England rightly does not deny expressing a desire to kill his brother-in-law for cooperating; the recorded conversations with his father over the

prison phone prove as much. Instead, England argues

that his statements to his father cannot support the

weight of his conviction because his father never relayed the threats to his brother-in-law. A threatening

statement that the intended recipient does not receive,

England argues, is not the “use of . . . [a] threat” for

purposes of § 1512(a)(2)(A). We disagree.

The statute itself does not define what it means to

“use[ ] . . . the threat of physical force.” However, the plain

meaning of the phrase does not require that the would-be

victim learn of the threat. The verb “use” in § 1512(a)(2) is

roughly akin to “employ” and means to “to put into

action or service.” WEBSTER’S THIRD INTERNATIONAL

DICTIONARY 2523 (1981); see also BLACK’S LAW DICTIONARY

1541 (6th ed. 1990) (defining “use” as “to convert to one’s

services”). And a “threat” is “an expression of intention to

inflict evil, injury, or damage on another.” WEBSTER’S

THIRD, supra, at 2382; BLACK’S, supra, at 1480 (defining

“threat” as a “communicated intent to inflict physical or

other harm on any person or on property”). When read

together, the statute prohibits expressing an intent to

inflict injury on another through physical force.2

 An
12 No. 06-2381

2 (...continued)

“express” as “to represent in words” and “expression” as “an act,

process, or instance of representing, manifesting or conveying

in words or some other medium”).

“expression” only requires that someone—not necessarily

the intended victim—perceive it. Adding a requirement

that the would-be victim himself actually perceive the

threat would graft on an additional “receipt” element that

the statute’s text does not require. See United States v.

Geisler, 143 F.3d 1070, 1071-72 (7th Cir. 1998) (rejecting

a “receipt” requirement under 18 U.S.C. § 876, which

prohibits depositing threatening communications in the

mail); see also Johnson, 903 F.2d at 1088 n.5 (stating

that under § 1512 “the focus is on the endeavor to bring

about the proscribed result, rather than on the success of

the endeavor”). We have not read an analogous requirement into other statutes prohibiting threats. See United

States v. Fuller, 387 F.3d 643, 646-47 (7th Cir. 2004) (18

U.S.C. § 871); Geisler, 143 F.3d at 1071-71 (18 U.S.C.

§ 876). Accordingly, we decline to do so under

§ 1512(a)(2)(A).

To avoid this result, England argues that, because the

threat never actually made it to his brother-in-law, his

statements did not have a “reasonable tendency to intimidate,” citing the standard articulated by this Court

in United States v. De Stefano, 476 F.2d 324 (7th Cir.

1973). However, this argument misreads De Stefano. The

relevant issue in that case was whether a none too

subtle “question” that the defendant posed to a witness in

an elevator—“Have you done any fishing lately?”—constituted a threat under 18 U.S.C. § 1503. Id. at 327, 330.

The Court articulated an objective standard for evaluating whether a statement constitutes a threat, concluding

that the relevant inquiry is whether the statement has
No. 06-2381 13

a “reasonable tendency to intimidate.” Id. at 330. This

standard governs the contents of the threat; that is,

whether the defendant’s statement is actually “an expression of intention to inflict evil, injury, or damage.” This

objective reasonableness standard ensures that only “true

threats” go punished. See Watts v. United States, 394 U.S.

705, 707 (1969); United States v. Stewart, 411 F.3d 825,

828 (7th Cir. 2005) (stating that a “true threat” consists

of a statement made “in a context or under such circumstances wherein a reasonable person would foresee that

the statement would be interpreted by those to whom the

maker communicates a statement as” a threat (quoting

United States v. Khorrami, 895 F.2d 1186, 1191 (7th Cir.

1990)). It does not provide a yardstick for measuring the

likelihood that the statement would either reach or

subjectively affect the intended recipient.

Nonetheless, the fact that the intended target never

received the threat is still relevant under § 1512(a)(2)(A).

The proximity of the person who hears the threat to the

ultimate target of the threat is evidence of the speaker’s

“intent to . . . influence, delay, or prevent the testimony

of any person in an official proceeding.” Cf. United

States v. Spring, 305 F.3d 276, 281 (4th Cir. 2002) (stating

that “whether a threat was communicated to the victim

may affect whether the threat could reasonably be perceived as an expression of genuine intent to inflict injury”). As the link between an expression of an intent to

inflict injury and the participant in an official proceeding

grows more attenuated, so too does the inference that the

speaker intended to “influence, delay, or prevent” testimony in an official proceeding. In this case, no such

attenuation exists. England could not reach his brother-inlaw because he had blocked calls from the prison phone.

His next best option was to convey the threats to his

father with instructions to pass them along. Although it

was not inevitable that his father would relay the threat,
14 No. 06-2381

it was not irrational to think that England intended to

influence his brother-in-law. Because rationality is the

relevant inquiry, sufficient evidence supported England’s

conviction under § 1512(a)(2)(A).

C. Reasonableness of England’s Sentence

Finally, England challenges the reasonableness of his

sentence. In calculating England’s sentence, the district

court first looked to the statutory index of the Guidelines

and found the Guidelines sections corresponding to 18

U.S.C. § 1512(a). Pursuant to this Court’s holding in

United States v. Lanas, 324 F.3d 894 (7th Cir. 2003), the

district court concluded that the most germane Guidelines

section was U.S.S.G. § 2A2.1, which punishes “Assault

with Intent to Commit Murder; Attempted Murder.” In so

doing, the court rejected England’s argument that it

should apply U.S.S.G. § 2J1.2, which governs “Obstruction of Justice,” but which the Guidelines do not link to

§ 1512(a). After grouping the four counts, the district

court calculated England’s sentencing range using the

base offense level for attempted murder, carrying an

offense level of 33. Finally, the court declined to vary the

sentence based on the factors listed in 18 U.S.C. § 3553(a).

The issue on appeal is straightforward: England threatened to kill his brother yet the Sentencing Guidelines point

to a sentence for attempted murder. The difference

between the two is not negligible; attempted murder

carries a base offense level of 33 whereas threats of

physical injury to obstruct justice carry a base offense

level of 22. See U.S. SENTENCING GUIDELINES MANUAL

§§ 2A2.1, 2J1.2 (2005). England’s ultimate sentence was

262 months in prison, which, on appeal, England claims

is an unreasonable one. However, we do not find it necessary to reach the reasonableness of England’s sentence.

The record on appeal lacks any indication that the district

court considered “the need to avoid unwarranted sentence
No. 06-2381 15

disparities among defendants with similar records who

have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a)(6). Because the record is inadequate to evaluate

the district court’s use of its discretion, we vacate England’s sentence and remand for resentencing.

As a preliminary matter, the district court properly

declined to apply U.S.S.G. § 2J1.2. Prior to the 2000

Amendments to the Sentencing Guidelines, the district

court would have been free to choose a section not listed

in the statutory index in arriving at the appropriate base

offense level, “provided the charged conduct fit more

closely within the other guideline.” Lanas, 324 F.3d at

904. However, the 2000 Amendments deleted this “heartland” provision. Rather than tinker with the Guidelines

sections listed in the statutory index, the district court

must typically begin with “the offense guideline referenced in the Statutory Index for the statute of conviction.”

See United States v. Gracia, 272 F.3d 866, 876 (7th Cir.

2001) (quoting U.S. SENTENCING GUIDELINES MANUAL

app. C. supp., amend. 591, at 32 (2000)); see also United

States v. Kosmel, 272 F.3d 501, 507 (7th Cir. 2001) (discussing effect of Amendment 591 on “heartland” analysis).

As long as the ultimate sentence is reasonable, the district court can vary from the sentence identified in the

Guidelines based on its discretion under § 3553(a). See

United States v. Vitrano, 495 F.3d 387, 391-92 (7th Cir.

2007).

In denying the defendant’s request for a variance, the

district court did not actively consider 18 U.S.C.

§ 3553(a)(6) and the sentence disparity that may arise

from England’s sentence. In a post-Booker world, the

district court enjoys considerable discretion when imposing a sentence. The present sentencing regime consists of

a nearly exhaustive set of rules set out in the Guidelines

that is moderated by judicial discretion and the reasonableness standard. Illustrative of this discretion are the
16 No. 06-2381

considerations set out in 18 U.S.C. § 3553(a); the result

dictated by the rigid calculus in the Guidelines must first

pass through the discretion conferred by these factors

before a sentence becomes final. See United States v.

Cunningham, 429 F.3d 673, 676 (2005).

In the case at hand, the court gave no indication that

it considered the disparity that may arise from England’s

sentence when it discussed a variance under § 3553(a)

even though the defendant pointed to the factual dissimilarity between his threat and the applicable Guidelines

section. Elsewhere, the court expressed its concern over

the potential injustice that might occur. The district court

stated that it found the use of the Guidelines section for

attempted murder “somewhat difficult in this case.” In

addition, the court requested briefing on whether to

apply § 2A2.1 or § 2J1.2 to England’s conduct. Despite

these concerns and the fact that the typical threat called

for a markedly different sentence, the district court did

not discuss the potential disparity as part of its § 3553(a)

analysis.

This discretion is all the more important where, as here,

it appears that the Sentencing Guidelines might have a

fairly pernicious scrivener’s error. The error results from

a recent amendment that Congress made to the witness

tampering statute. In 2002, Congress amended 18 U.S.C.

§ 1512 and created the current § 1512(a)(2). Before the

2002 changes, § 1512(a) only punished “[w]hoever kill[ed]

or attempt[ed] to kill another person, with intent to” affect

his cooperation in an official proceeding. 18 U.S.C.

§ 1512(a) (2000). At the time, the Sentencing Guidelines

statutory index mapped these offenses to four sections of

the Guidelines: first- and second-degree murder, voluntary

manslaughter, and § 2A1.1, which governs “Assault with

Intent to Commit Murder; Attempted Murder.” U.S.

SENTENCING GUIDELINES MANUAL app. A, at 459 (2001).

Given what § 1512(a) punished at the time, this made
No. 06-2381 17

sense. A person either “kill[ed]” the person involved in

an official proceeding (through first- or second-degree

murder or voluntary manslaughter) or “attempt[ed] to kill”

him. The statutory index punished accordingly.

Similarly, before the 2002 changes, § 1512(b) punished

“[w]hoever knowingly use[d] intimidation or physical force,

threaten[ed], or corruptly persuade[d] another person, . . .

or engage[d] in misleading conduct toward another person”

involved in an official proceeding. 18 U.S.C. § 1512(b)

(2000). The statutory index mapped these offenses to

three Guidelines sections: attempted murder, aggravated

assault, and § 2J1.2, which governs “Obstruction of Justice.” U.S. SENTENCING GUIDELINES MANUAL app. A, at 459

(2001). This also made sense. A defendant either used

physical force meaning to kill the witness but fell short

(committing attempted murder); used physical force

meaning only to harm the witness and succeeded (committing aggravated assault); or threatened, intimidated

or otherwise “corruptly persuaded” the witness (and

obstructing justice).

In 2002, Congress rearranged the witness tampering

statute and added a new § 1512(a)(2). Pub. L. No. 107-273,

at 1803-04 (2002). The bill was entitled “Increasing the

Penalty for Using Physical Force to Tamper with Witnesses, Victims, or Informants” and it produced the

current § 1512. Id. Section 1512(a)(2) now punishes

“[w]hoever uses physical force or the threat of physical

force against any person, or attempts to do so.” 18 U.S.C.

§ 1512(a)(2) (2006). The 2002 amendment also added a tenyear statutory maximum for threats under the modified

§ 1512(a)(2) and struck “physical force” from § 1512(b).

Pub. L. No. 107-273, at 1804. Section 1512(b) now only

punishes intimidation, threats, corrupt persuasion and

misleading conduct. 18 U.S.C. § 1512(b) (2006).

However, the relevant portions of the statutory index

to the Sentencing Guidelines remained exactly the same.
18 No. 06-2381

See U.S. SENTENCING GUIDELINES MANUAL app. A, at

525 (2005). As a result, the Guidelines sections that

correspond to § 1512(a) do not include “Obstruction of

Justice,” even though a threat of physical force against a

witness would appear to fall within this category. Similarly, although no crime involving physical violence exists

in § 1512(b), the statutory index continues to reference

second-degree murder and aggravated assault. Most

notably, the statutory maximum for threats under

§ 1512(a) is ten years, but the minimum Guidelines

sentence for murder threats under § 1512(a) is over eleven

years. Compare U.S. SENTENCING GUIDELINES MANUAL

ch. 5, part A (2005) (setting minimum sentence for defendant with no prior criminal history and base offense level

of 33 at 135-168 months in prison) with 18 U.S.C.

§ 1512(a)(3)(C) (2006) (providing as punishment “in the

case of the threat of use of physical force against any

person, imprisonment for not more than 10 years”).

All of this points to a potential scrivener’s error in the

statutory index. If a mistake exists, remedying it falls

within the purview of the Sentencing Commission, not

this Court. However, given the discretion that the district court has in imposing a sentence, the potential

disparity that may arise from sentencing a threat as

though it was an attempted murder would be a basis for

a variance. Because the district court did not explain its

view on the potential disparity, we vacate England’s

sentence and remand for resentencing. However, we

express no opinion as to the appropriate sentence.

III. Conclusion

For the reason’s stated herein, we AFFIRM England’s

conviction and VACATE his sentence and REMAND for

resentencing.
No. 06-2381 19

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-7-07