*

The Honorable John R. Adams, United States District Judge for the Northern District of Ohio,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0318p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

HERBERT WILFRED NIXON,

Defendant-Appellant.

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No. 10-5929

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 09-00273-001—William J. Haynes, Jr., District Judge.

Decided and Filed: December 20, 2011 

Before: SILER and KETHLEDGE, Circuit Judges; ADAMS, District Judge*

_________________

COUNSEL

ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand

Rapids, Michigan, for Appellant. Sandra G. Moses, ASSISTANT UNITED STATES

ATTORNEY, Nashville, Tennessee, for Appellee.

_________________

OPINION

_________________

KETHLEDGE, Circuit Judge. Herbert Nixon sent six threatening letters to the

federal district judge who had sentenced him to prison for fraudulent use of an

unauthorized credit card. The unsigned letters demanded money and threatened the

judge’s life. One of them contained a white-powder substance, which was later

determined to be a harmless artificial sweetener. Nixon pled guilty to committing a hoax

1
No. 10-5929 United States v. Nixon Page 2

involving a biological weapon, in violation of 18 U.S.C. § 1038(a)(1). The Sentencing

Guidelines recommended a sentence of 30 to 37 months in prison. The district court

disagreed with that recommendation and sentenced Nixon to 60 months—the statutory

maximum—and also ordered that he have no contact with any member of the postal

service during his three years of supervised release. Nixon now challenges his sentence

and the supervised release condition. The district court’s sentence was reasonable, so

we affirm. 

Nixon first argues that his sentence is substantively unreasonable. We review

his above-Guidelines sentence using a “deferential abuse-of-discretion standard.”

United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007) (quoting United States v. Gall,

552 U.S. 38, 41 (2007)). A sentence may be substantively unreasonable where a district

court selects it arbitrarily, fails to consider pertinent factors in 18 U.S.C. § 3553(a), or

gives unreasonable weight to any one factor. United States v. Denny, 653 F.3d 415, 424

(6th Cir. 2011).

Here, the district court committed no error. The court explained its

sentence—including its decision to vary from the Guidelines—by discussing the serious

effect of Nixon’s crime on the operation of government. See 18 U.S.C. § 3553(a)(2)(A).

Nixon says that was an impermissible basis for varying upward because his Guidelines

range already included an enhancement for targeting a government officer. That a

circumstance was addressed in the Guidelines, however, does not prevent the district

court from considering it under section 3553(a), so long as the court explains why the

circumstance warrants additional weight with regard to that particular defendant’s

sentence. See United States v. Tristan-Madrigal, 601 F.3d 629, 635–36, 636 n.1 (6th

Cir. 2010) (refusing to find an above-Guidelines sentence to be substantively

unreasonable where the Guidelines had already accounted for the district court’s

justifications for that sentence). Moreover, Nixon’s offense involved more than just a

single act against a government official—his white-powder hoax was part of a series of

letters that threatened the life of a district judge and attempted to extort him.
No. 10-5929 United States v. Nixon Page 3

The district court also explained that it varied above the Guidelines because

Nixon’s prior sentence of 36 months for credit card fraud had failed to deter him from

further criminal conduct. That too was a proper consideration under section

3553(a)(2)(C). See Tristan-Madrigal, 601 F.3d at 633–34. That Nixon sent the

threatening letters out of anger over his fraud sentence makes no difference—the court

determined that a sentence of more than 36 months was necessary to deter Nixon against

future crimes. 

Finally, Nixon says that by sentencing him at the top of the statutory range, the

district court left no room for higher penalties for more serious offenders. But Nixon’s

crimes were serious: they required the government to spend resources responding to a

bio-hazard threat and were meant to terrorize a district judge and his staff. Moreover,

the court found that Nixon was a repeat offender and that the Guidelines’ criminal

history calculation understated his criminal record. Those observations went to Nixon’s

history and characteristics and were proper under section 3553(a)(1). See TristanMadrigal, 601 F.3d at 635–36. 

That an appellate court might have imposed a different sentence is not an

appropriate basis for reversal. Gall, 552 U.S. at 51; see also United States v. Collington,

461 F.3d 805, 811 (6th Cir. 2006) (where the district court has considered the relevant

section 3553(a) factors in-depth, the appellate court should not substitute its judgment

for that of the district court regarding how long the defendant should serve). Given the

circumstances of Nixon’s offense, his criminal history, and his refusal to be deterred by

a prior 36-month sentence, the district court’s sentence of 60 months was not an abuse

of discretion.

Nixon also challenges the supervised release condition barring him from contact

with any member of the postal service. Nixon did not object to this condition before the

district court, so we review it only for plain error. United States v. Kingsley, 241 F.3d

828, 835 (6th Cir. 2001). A district court may impose a supervised release condition as

long as it is reasonably related to the factors in 18 U.S.C. § 3553(a)(1), (a)(2)(B),

(a)(2)(C), and (a)(2)(D); involves no greater deprivation of liberty than is reasonably
No. 10-5929 United States v. Nixon Page 4

necessary for those factors; and is consistent with any pertinent policy statements of the

Sentencing Commission. See 18 U.S.C. § 3583(d). 

Here, Nixon used the postal service to commit his crimes, so the supervised

release condition was reasonably related to the “nature and circumstances of [his]

offense.” 18 U.S.C. § 3553(a)(1); see also Kingsley, 241 F.3d at 838 (affirming a

supervised release condition restricting the driving privileges of a defendant because he

had used his vehicle to illegally transport firearms). The condition also serves to deter

Nixon against future criminal conduct, including retaliation against postal employees.

See United States v. Berridge, 74 F.3d 113, 119 (6th Cir. 1996) (affirming a condition

prohibiting a defendant from obtaining employment in the banking industry, after he

pled guilty to making false statements on loan applications, in order to aid the defendant

in avoiding the conditions that led him to commit the offense). Nixon has not identified

any statements of the Sentencing Commission that are inconsistent with this condition.

And that the condition arguably implicates Nixon’s First Amendment rights does not

invalidate it—we have approved supervised release conditions affecting constitutional

rights so long as they were directly related to the defendant’s rehabilitation and the

protection of the public. See United States v. Ritter, 118 F.3d 502, 504–05 (6th Cir.

1997) (rejecting a First Amendment challenge to a condition ordering a defendant to

disclose his embezzlement crimes to his employer). Finally, the deprivation of Nixon’s

liberty is not greater than necessary. Nixon is only prohibited from contacting members

of the postal service; he is not barred from using the service altogether. There was no

error, plain or otherwise.

The district court’s sentence is affirmed.