Virginia Lawyers Weekly VA Lawyers Weekly
When asked to impose a shorter sentence based on the defendant’s well-documented history of mental illness, the sentencing court was required to explain why it rejected such mitigation. Defense counsel had argued that the defendant’s multiple death threats sent to public officials were simply a “cry for help.”
Background
While Appellant James Cox was serving a previous sentence in a Virginia prison, he wrote and mailed three letters graphically threatening to rape and kill judges and prosecutors in various states. The government charged Cox with three violations of 18 U.S.C. § 876(c), which authorizes a sentence of up to 10 years in prison for communications addressed to judges and law enforcement officers.
The psychologist who evaluated Cox’s competency diagnosed him with borderline personality disorder and antisocial personality disorder, but concluded that Cox was competent to stand trial and criminally responsible for his behavior at the time of the charged offenses. The district court set a trial date, but in the meantime Cox had mailed two more letters, including one threatening to kill the presiding district court judge. Accordingly, the government brought a superseding indictment, Cox’s case was re-assigned, and he sought to plead guilty.
During the plea colloquy, Cox explained that he’d been in and out of treatment facilities, residential programs, group homes, and state mental institutions since age 10, had been diagnosed with a variety of mental disorders, and had a history of self-harm. The magistrate judge accepted Cox’s guilty plea.
At the sentencing hearing, the district court accepted the presentence report, which relied on the guideline for “extortion by force or threat of injury or serious damage” to recommend a sentencing range of 100 to 125 months for all five of Cox’s § 876(c) violations – even though Cox’s communications had not involved extortion. Neither the government nor Cox raised any objection to that Guidelines calculation; instead Cox asked for a sentence of fewer than 100 months based on his mental illness. When Cox mailed the threatening letters, his counsel argued, “he had no ability whatsoever to act” on the threats; instead, he was “an attention seeker” who was “asking for help.”
Cox also addressed the court directly: “When I get out, I will, I will kill these people. That’s a promise; I will get out and try to kill these people. That’s the honest, that’s the honest-to-god truth.” Cox went on, “I need some kind of help, some kind of counseling or something, just somebody I can talk to.” The district court thanked Cox for his “candor.”
Noting Cox’s extensive criminal history, the ineffectiveness of prior periods of incarceration, and the need to protect the public, the court determined that it had “no choice” but to sentence Cox to the 10-year maximum on each count, to run consecutively, for a total of 50 years in prison. This appeal followed.
Reasonableness
This court need not resolve whether the unpreserved Guidelines error in this case affected Cox’s substantial rights so as to allow for correction on plain-error review. As explained below, the district court erred in failing to adequately explain its sentence – and that alone is grounds for resentencing. On remand, the district court will have the opportunity to apply the correct Guidelines provision, obviating the need for any appellate remedy.
Cox argued to the district court that his threatening letters should be viewed in the context of his untreated mental illness, warranting a below-Guidelines sentence. The premise of that argument – that Cox had a history of mental illness and unsuccessful institutionalizations – was amply supported by the record. The district court failed to explain why it was rejecting Cox’s argument for a lower sentence in light of those mental health issues.
The government argues that the district court adequately explained its 50-year sentence as a whole, principally by describing Cox’s extensive criminal history and emphasizing the need to protect the public. Under these circumstances, that is not enough. Once Cox came forward with a non-frivolous basis for a different sentence, it was incumbent on the district court to address that argument and explain why it found it unpersuasive. Cox’s competence to stand trial and criminal responsibility for his actions are different questions, subject to different legal standards, than whether his mental illness is a mitigating factor warranting less time in prison.
Accordingly, this court vacates Cox’s sentence as procedurally unreasonable. On remand, consistent with this opinion, the district court should apply Sentencing Guideline § 2A6.1 and its commentary.
Vacated and remanded.
United States v. Cox, Case No. 17-4090, May 11, 2018. 4th Cir. (Harris), from WDVA at Big Stone Gap (Urbanski). Brian Jackson Beck for Appellant; Martha Suzanne Kerney-Quillen for Appellee. VLW No. 018-2-092, 11 pp.
