01-2778 U.S. v. Bohanon

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“[O]ur examination of this record leads us to think that Bohanon should be happy that the judge was not more literal or mathematical in anchoring the departure to the guidelines. Had he been more literal, the departure would almost certainly have been greater.

U.S.S.G. sec.2A6.1, which provides the base offense level in this case, requires that the offense level be increased by 2 levels if there were more than two threats. Then the application notes state that departure is warranted if the conduct involved ‘substantially more than two threatening communications.’ Bohanon’s situation would be worse if the judge had concluded that if two threats means a 2-level increase, then 100 threats means a 100-fold increase. That example shows why literal application and mathematical precision should not be the goal of guideline sentencing. While district judges are required to tie departures to the structure of the guidelines, they are not required to be mathematicians.

Despite the absurdities sometimes involved in guideline sentencing, we have not yet deceived ourselves into thinking that mathematical precision is possible. We have said that the ‘degree of departure is entirely one of reasonableness. …’ United States v. Peterson, 256 F.3d 612, 615 (7th Cir. 2001). Or, looking again at the fact that the guidelines call for a 2-level increase for more than two threats, we see that the increase, for instance, from level 12 to level 14 for someone in criminal history category III is from 15-21 months to 21-27 months – or about 6 months. Departing upward 11 months for the number of threats involved here is well below the range. As an aside, it is interesting to note that the upward departure roughly approximates an additional day for each letter-were we to credit the estimate that there were, in fact, over 300 letters, a conclusion which is not unreasonable.

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Norgle, J., Evans, J.