02-1586 U.S. v. Xavier

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“In refusing to apply [U.S.S.G. 2A6.1(b)(4)], the sentencing judge noted that at the time he made the threat to Officer Lowery, Xavier was ‘no longer agitated and shouting.’ The judge noted Officer Lowery’s testimony that Xavier ‘was laying on the seat strapped to the seat. It was almost eerie, cool, calm and collected statement of fact that he said that.’ That testimony led the judge to determine that this was a ‘very different circumstance than the outburst and the spontaneous eruption’ and to find that in an ‘eerie, cool, calm, collected manner, he issues a threat to this federal officer.’ Xavier’s manner was seen as evidence of deliberation, ‘evidence that he had an opportunity to think about what he was going to say.’ Try as we are urged to, no clear error can be detected in this determination.

“Xavier also contends that it was error to depart upward in the criminal history category, under U.S.S.G. º4A1.3(e). … The sentencing judge based his departure on a factor specifically recognized in the guidelines: ‘prior similar adult criminal conduct not resulting in a criminal conviction’ as set out in º4A1.3.

“In addition to finding it ‘extraordinary’ that Xavier tried to deny the convictions which were in the record from the Bureau of Prisons, the judge was concerned with other threats Xavier had made. On one occasion Xavier said, ‘I would like to kill all U.S. Marshals that come down to the islands.’ He said, ‘All U.S. Marshals need to be killed.’ He sprayed bleach on another inmate in the jail. He threw feces on other inmates; flooded his cell; refused orders of the jailers. And in what might have been the crowning blow, he wrote an outrageous letter to a probation officer. The judge found that Criminal History Category III did not reflect Xavier’s criminal history and did not reflect the likelihood that he would commit other similar crimes. The judge, in fact, thought Xavier deserved to be in the highest category based on the likelihood that he would commit other crimes like the crimes of conviction. And unfortunately for Xavier, the judge had first-hand experience with Xavier’s tendency to act out. … It is not too large a leap to think that those outbursts might escalate in the future to threats.”

Affirmed.

Appeal from the United States District Court for the Southern District of Illinois, Herndon, J., Evans, J.