American Bar Association
Media Alerts
Media Alerts - United States v. Spencer -- Fourth Circuit
Decrease font size
Increase font size
December 3, 2015
  United States v. Spencer -- Fourth Circuit
Rinse and Resentence: Court Demands New Sentence for Fluoride-Wielding Defendant

Areas of Law: Criminal Law, Sentencing

Issue Presented: Whether a defendant's sentence enhancement for evidence of intent to commit a crime was proper when the defendant sent dried toothpaste in a threatening letter.

Brief Summary: Todd Allen Spencer pled guilty to one count of threat to injure by communication under 18 U.S.C. § 876(c). Spencer sent a letter to the Clerk of the United States District Court for the Eastern District of Virginia that contained written threats and dried, powdery toothpaste. Spencer was sentenced to 46 months incarceration and was subject to a six-level sentencing enhancement under U.S. Sentencing Guidelines Manual § 2A6.1(b)(1). This enhancement was for "conduct evidencing an intent to carry out such threat." The Fourth Circuit held that Spencer's conduct in including the dried toothpaste did not demonstrate intent to carry out his threats, vacated his original sentence, and remanded for resentencing.

Extended Summary: Defendant Todd Allen Spencer mailed a letter to the Clerk of the United States District Court for the Eastern District of Virginia. In that letter, Spencer included a threat to kill or injure the letter's recipient, and also included in the envelope what the court describes as "dried, powdery toothpaste." Spencer subsequently pled guilty to one count of threat to injure by communication under 18 U.S.C. § 876(c).

At sentencing, the Government sought a six-level enhancement under U.S. Sentencing Guidelines Manual § 2A6.1(b)(1), on the grounds that "the offense involved . . . conduct evidencing an intent to carry out such threat." The district court found that Spencer's inclusion of the dried toothpaste was evidence of his intent to kill or harm the Clerk and applied the six-level enhancement. Spencer was sentenced to 46 months of incarceration.

On appeal to the United States Court of Appeals for the Fourth Circuit, Spencer argued that the district court erred in applying this enhancement. The application of this enhancement turns on "the defendant's intent and the likelihood that the defendant would carry out the threat." United States v. Worrell, 313 F.3d 867, 876 (4th Cir. 2002). As such, threats alone are not sufficient to justify inclusion of the § 2A6.1(b)(1) enhancement.

While the application notes for § 2A6.1(b)(1) do not include any example of applicable conduct, the Fourth Circuit looked at Sentence Guideline Manual § 2M6.1, which pertains to biological agents and toxins. This section is cross-referenced by the "intent to commit" section that was used to lengthen Spencer's sentence. The notes to the "biological agents and toxins" section state that "a defendant does not engage in conduct evidencing an intent to carry out a threat to use a biological agent or toxin by dispersing a substance that appears to be an agent or toxin but is not, and the defendant knows is not, an actual biological agent or toxin."

Based on this language, the Fourth Circuit concluded that Spencer did not have the necessary intent to kill or injure the letter's recipient that is required to qualify for the six-level enhancement under § 2A6.1(b)(1). The court found that inclusion of the dried toothpaste did not show Spencer's subjective intent to actually harm another individual or make his threats any more dangerous.

The court did consider whether the error committed by the district court was harmless, but concluded that it was not. The court noted that nothing in the record indicated that the district court would have been inclined to sentence above the guidelines had this enhancement not been applied, and that clearly the application of the enhancement lengthened Spencer's eventual sentence. Because the district court erred in applying the sentence and the error was not harmless, the Fourth Circuit vacated Spencer's original sentence and remanded his case to the district court for resentencing.

To read the full text of this opinion, please click here.

Panel: Judges Shedd, Duncan and Davis

Argument Date: N/A

Date of Issued Opinion: October 20, 2015

Docket Number: 15-4060

Decided: Sentence vacated and remanded to the district court for resentencing

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: Geremy C. Kamens, Acting Federal Public Defender, Frances H. Pratt, Rodolfo Cejas, II, Assistant Federal Public Defenders, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, William D. Muhr, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Author of Opinion:
Per curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 11:40 AM     4th Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top