Is this Fred Hall, NYTelecom, or one of LDH's or Essie's relatives?
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United States Court of Appeals
For the First Circuit
No. 00-2569
UNITED STATES,
Appellee,
v.
PETER A. NEDD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell and Bownes, Senior Circuit Judges.
Owen S. Walker, Federal Public Defender, for appellant.
John T. McNeil, Assistant U.S. Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.
September 4, 2001
CAMPBELL, Senior Circuit Judge. Peter Nedd appeals from his sentence of thirty-three months imprisonment imposed after pleading nolo contendere to four counts of transmitting threatening communications in interstate commerce in violation of 18 U.S.C. § 875(c) and pleading guilty to one count of interstate violation of a restraining order in violation of 18 U.S.C. § 2262(a)(1). He argues that the district court erred in its application of the grouping rules of the United States Sentencing Guidelines, in particular, U.S.S.G. § 3D1.2 ("Groups of Closely Related Counts"), by grouping the five-count indictment into three groups instead of into one group.(1) We affirm, although on an interpretation of the grouping rules different from that of the district court.
I. BACKGROUND
The facts underlying this appeal are not in dispute. We take the facts and sentencing details from the Presentence Report (PSR) and the transcript of proceedings below. United States v. Lindia, 82 F.3d 1154, 1158 (1st Cir. 1996).
Defendant's Personal History
Defendant Peter Nedd is a thirty-eight year old man with a history of mental illness such as manic depression and schizophrenia, both of which were diagnosed in 1989 when he was living in Boston and hospitalized for a brief time.
While a resident of Boston, Nedd attended the Kingdom Hall of Jehovah Witnesses in Cambridge. There he met the Carpenter family, Richard and Andrea Carpenter and their daughter Chantelle. Nedd became obsessed with Chantelle, desiring her romantic affection. Nedd would call the Carpenters' house repeatedly requesting to see Chantelle and would send Chantelle gifts. His attention was unreciprocated. Richard Carpenter became especially concerned with Nedd's behavior when, in 1996, Nedd falsely claimed that Richard Carpenter had given Chantelle permission to marry Nedd. At the time, Chantelle was a teenager and Nedd in his early thirties.
Although Nedd moved to New York in 1996, his obsession with Chantelle did not end. He continued to call the Carpenters' home and to send letters and gifts to Chantelle. The Carpenters felt harassed by Nedd's repeated communications. They stopped answering their phone and began to record all of his telephone messages with their answering machine.
The Carpenters describe Nedd's messages left on the their answering machine in the fall of 1998 as changing in tone from romantic obsession to threatening violence. Those messages demanded that Richard Carpenter allow Chantelle to marry Nedd or that Chantelle return all the gifts Nedd had sent her. The Carpenters did not return Nedd's calls.
In May 1999, Nedd came from New York to Boston to see Chantelle. When Richard and Andrea Carpenter learned that Nedd was in Boston, they sent Chantelle into hiding and obtained a temporary restraining order against Nedd. That restraining order was made permanent on June 3, 1999 and prohibits Nedd from, among other things, threatening either Richard or Chantelle Carpenter.
Criminal Conduct for the Instant Case
Although Nedd returned to New York without further calls or attempted visits to the Carpenters' home, during the summer of 1999, he persisted in harassing the Carpenters as before.(2) Then, on October 14, 1999, Nedd called the Carpenters from New York and left what would be the first of four recorded violent messages on their home telephone answering machine that form the bulk of the present charges. On that day he left the following message on the Carpenters' answering machine:
"Hey Richard Carpenter, did you get that letter I sent your fucking daughter, . . . if I see you and you come near me I will break your fucking jaw. If you have a fucking gun, I will shove that shit up your fucking hole and blow your fucking brains out . . . ." This conduct forms Count I of the indictment issued against Nedd in this case ("Interstate Threats" in violation of 18 U.S.C. § 875(c)).
On October 18, 1999, Nedd again called the Carpenters, this time saying that he was on his way to Boston. After arriving in Boston, he made several calls to the Carpenters and tried to visit them at their home, to no avail. This behavior violated the permanent restraining order and is the conduct that forms Count VI of the indictment ("Interstate Violation of a Restraining Order" in violation of 18 U.S.C. § 2262(a)(1)).
On November 30, 1999, Nedd left another message from New York on the Carpenters' answering machine that said, in relevant part:
"Hey Richard, if I don't get my fucking shit back that I gave your daughter . . . with a fucking note that says I am sorry I hurt your feelings . . ., I will fucking kill you, and her, and your fucking wife [slams the phone down]." This conduct forms Count II of the indictment ("Interstate Threats," 18 U.S.C. § 875(c)).
On December 4, 1999, Nedd left the following message that forms Count III of the indictment ("Interstate Threats," 18 U.S.C. § 875(c)):
"Hey Richard Carpenter, guess what? . . . I'm going to kill you and I am going to beat the shit out of you and if I see your fucking daughter I'll beat the shit out of her and fuck her up the ass like a fucking dog . . . ."
On December 6, 1999, Nedd left the last of the four messages described in the indictment. This one forms Count IV ("Interstate Threats," 18 U.S.C. § 875(c)). It said:
"Hey Richard Carpenter . . . I'm going to fucking kill you . . . I'm coming to Boston, Richard, and this time you won't see me. And when you come to your fucking house I will break your fucking head open. I'll kill your wife and your fucking daughter if you do not send all my personal things back . . . ."
C. Charges and Plea
On April 26, 2000, Nedd was charged with four counts of interstate threats in violation of 18 U.S.C. § 875(c) (Counts I-IV) and one count of interstate violation of a restraining order in violation of 18 U.S.C. § 2262(a)(1)(Count VI). On July 13, 2000, the district court accepted Nedd's plea of nolo contendere to Counts I-IV and accepted Nedd's plea of guilty to Count VI. The charges to which he pleaded read as follows:
COUNT ONE: 18 U.S.C. § 875(c) - Interstate Threats
. . .
On or about October 14, 1999, at Boston, in the District of Massachusetts,
PETER A. NEDD
defendant herein, knowingly and willfully transmitted in interstate commerce a communication containing a threat to injure the person of another, to wit: a telephone call originating outside the Commonwealth of Massachusetts placed to a telephone in Boston, Massachusetts which threatened to break the jaw and to blow the brains out of Richard Carpenter.
All in violation of Title 18, United States Code, Section 875(c).
COUNT TWO: 18 U.S.C. § 875(c) -
Interstate Threats
. . .
On or about November 30, 1999, at Boston, in the District of Massachusetts,
PETER A. NEDD
defendant herein, knowingly and willfully transmitted in interstate commerce a communication containing a threat to injure the person of another, to wit: a telephone call originating outside the Commonwealth of Massachusetts placed to a telephone in Boston, Massachusetts which threatened to kill Richard Carpenter, Andrea Carpenter, and Chantelle Carpenter.
All in violation of Title 18, United States Code, Section 875(c).
COUNT THREE: 18 U.S.C. § 875(c) - Interstate Threats
. . .
On or about December 4, 1999, at Boston, in the District of Massachusetts,
PETER A. NEDD
defendant herein, knowingly and willfully transmitted in interstate commerce a communication containing a threat to injure the person of another, to wit: a telephone call originating outside the Commonwealth of Massachusetts placed to a telephone in Boston, Massachusetts which threatened to kill Richard Carpenter, and to beat and to forcibly sodomize Chantelle Carpenter.
All in violation of Title 18, United States Code, Section 875(c).
COUNT FOUR: 18 U.S.C. § 875(c) - Interstate Threats
. . .
On or about December 6, 1999, at Boston, in the District of Massachusetts,
PETER A. NEDD
defendant herein, knowingly and willfully transmitted in interstate commerce a communication containing a threat to injure the person of another, to wit: a telephone call originating in New York State placed to a telephone in Boston, Massachusetts which threatened to kill Richard Carpenter, Andrea Carpenter, and Chantelle Carpenter.
All in violation of Title 18, United States Code, Section 875(c).
. . .
COUNT SIX: 18 U.S.C. § 2262(a)(1) - Interstate Violation of a Protective Order
. . .
On or about October 18, 1999, at Boston, in the District of Massachusetts,
PETER A. NEDD
defendant herein, traveled across the State line of the Commonwealth of Massachusetts with the intent to engage in conduct that violated that portion of the protection order issued by the Commonwealth of Massachusetts Superior Court that involved protection of Richard Carpenter and Chantelle Carpenter against repeated harassment, and the defendant subsequently engaged in repeated harassment in violation of that protective order by repeatedly telephoning the residence of Richard and Chantelle Carpenter on or about October 18 and 19, 1999, and by attempting to visit them at their residence on or about October 18, 1999.
All in violation of Title 18, United States Code, Section 2262(a)(1).
On November 29, 2000, the district court sentenced Nedd to thirty-three months incarceration and three years of supervised release, imposing a number of special conditions including that the defendant continue to take his anti-psychotic medication and that he have no contact with the Carpenters.
The Sentencing Determination Made Below
At the sentencing hearing in the district court, the court discussed with the parties the most appropriate method under the Sentencing Guidelines for grouping the five counts of the indictment. See generally U.S.S.G., Ch. 3, Pt. D, introductory cmt. (entitled "Multiple Counts", one purpose of which is to "determin[e] a single offense level that encompasses all the counts of which the defendant is convicted"). Probation recommended grouping the five counts according to victim, positing three groups, one for each of the three members of the Carpenter family.(3) The government advocated probation's position with proffers of victim impact statements from each of the Carpenters. Nedd's counsel objected to this method, arguing that grouping by victim was not permitted under the Sentencing Guidelines as such a method split a count among several groups, putting one count into more than one group, see infra note 3, and therefore had the potential to create more groups than counts and would thwart the purposes of grouping, which is to lessen the amount of sentencing determinations and to "prevent multiple punishment for substantially identical offense conduct." Id. It was and remains the defendant's position that all five counts should form one group. According to the defendant, all five counts involve substantially the same harm within the meaning of U.S.S.G. § 3D1.2 (stating that "[a]ll counts involving substantially the same harm shall be grouped together into a single Group"). This would result in a sentence of eighteen to twenty-four months, as opposed to the twenty-seven to thirty-three month range for the three victim-defined groups advocated by the government.
The district court sentenced Nedd to thirty-three months in prison, the high-end of the government's proposed guideline range. In so doing, the district court settled on three groups for the five counts of the indictment, accepting probation's and the government's position that grouping the counts of the indictment into three groups by victim, each a member of the Carpenter family, was the correct application of the Sentencing Guidelines. Nedd has appealed from this sentencing determination.