* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 26 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MICHAEL C. SCOTT,

Defendant-Appellant. No. 01-1539 (D.C. No. 00-CR-296-WM) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, ANDERSON , Circuit Judge, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Michael C. Scott appeals the sentence imposed follo wing his convictions for three counts of sending threatening communicati ons in violation of 18 U.S.C. § 875(c), and one count of sending a threatening co mmunication with an intent to extort in violation of 18 U.S.C. § 875(b). He argu es that the trial court erred in imposing a 6-level upward adjustment for conduct ev idencing an intent to carry out the threats and by determining that it was prec luded from departing downward based on diminished capacity. We affirm. Mr. Scott entered a guilty plea to the four counts of sending threatening communications by e-mail. The e-mails mentioned sp ecific weapons. The district court determined that Mr. Scott’s possession of the se weapons as well as his going to the home of an FBI agent whom he had threatened constituted conduct evidencing an intent to carry out the threats. Acc ordingly, the court imposed a 6- level specific offense characteristic increase unde r USSG § 2A6.1(b)(1) (“If the offense involved any conduct evidencing an intent t o carry out such threat, increase by 6 levels.”). Mr. Scott argues that because he possessed these we apons long before he made the threats and that the district court committed clear error in determining that he had gone to the agent’s home, the court err ed in imposing the enhancement. “We review factual findings supportin g a sentencing decision for clear error and will not disturb such findings unle ss they have no basis in the-3-

record.” United States v. Martin , 163 F.3d 1212, 1217 (10th Cir. 1998), cert. denied , 526 U.S. 1137 (1999). The fact that Mr. Scott ha d possessed the weapons before he made the threats charged in the indictmen t does not mean that he did not intend to carry out the threats. It is undispu ted that Mr. Scott possessed approximately 80 firearms and 40,000 rounds of ammu nition as well as information pertaining to the construction and use of weapons and explosives. In addition, evidence was introduced that Mr. Scott fo llowed an FBI agent to his home. Mr. Scott disputes the sufficiency of this e vidence because the witnesses could not positively identify him as the individual who went to the agent’s home. However, the district court’s conclusion that Mr. S cott had followed the agent came from his own admission that he had followed th e agent. Accordingly, we cannot say that the court committed plain error in enhancing the sentence under § 2A6.1(b)(1). Mr. Scott also argues that the trial court erred byfailing to grant a downward departure for diminished capacity. Under USSG § 5K2.13, p.s., a downward departure may be warranted if the defendant committed the offense while suffering from a “significantly reduced menta l capacity.” However, the section also provides that the court may not departif “the facts and circumstances of the defendant’s offense indicate a need to prote ct the public because the offense involved actual violence or a serious threat of violence.”-4-

The court concluded that although Mr. Scott suffere d from diminished capacity, it was precluded from granting the depart ure by the Guidelines as a matter of law because Mr. Scott’s actions included very serious threats of violence. We review the district court’s legal con clusions de novo and its factual findings for clear error, affording great deference to the district court’s application of the Guidelines to the facts. United States v. Eaton , 260 F.3d 1232, 1237 (10th Cir. 2001). We have already determined that there was sufficien t evidence to support the district court’s enhancement for conduct eviden cing an intent to carry out the threats. This evidence also supports the conclusio n that there existed a serious threat of violence. Accordingly, the court did noterr in concluding that it was precluded from granting a downward departure for di minished capacity. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED

.

Entered for the Court

Deanell Reece Tacha Chief Judge