The case of a Rochester woman convicted of threatening to kill President Barack Obama is being sent back to U.S. District Court to determine if her sentence should be reduced.
The U.S. Court of Appeals for the Second Circuit on Tuesday ruled the District Court should reconsider its evaluation, under the federal sentencing guidelines, of the deliberateness of a 2012 threat made by Christine Wright-Darrisaw.
“We’re happy with the Second Circuit’s decision and we’ll address the rest of it when we can,” said Jeffrey L. Ciccone, an assistant federal public defender who represented Wright-Darrisaw on the appeal.
Ciccone, who is with the Federal Public Defender’s Office for the Western District of New York, said Wright-Darrisaw has less than a year remaining of her 33-month sentence, so if the judge agrees to apply a four-level reduction, she should have served out her sentence and any re-sentence should be for time already served.
The matter was prosecuted on appeal by Assistant U.S. Attorney Joseph J. Karaszewski, chief of the Appellate Division for the U.S. Attorney’s Office for the Western District of New York.
“The court has clarified what that guidelines provision means so we will digest that decision and make whatever arguments we can make when it goes back before Judge Geraci,” he said.
Wright-Darrisaw, 39, was found guilty in February 2014 of threatening to kill the president during a 2-and-a-half minute rant two years earlier in a call to the White House comments line and lying to a Secret Service agent. Her communication, according to the decision, was characterized as “foul,” “incoherent” and “irrational,” saying “I’m going to f**k and kill Obama.”
Wright-Darrisaw admitted calling the White House Feb. 24, 2012, to voice displeasure with child custody laws, but denied making any threats.
In imposing sentence, Judge Frank P. Geraci Jr., now chief judge, rejected the defendant’s request for a four-level decrease in the offense under federal sentencing guidelines, finding Wright-Darrisaw’s threat involved deliberation; that the very act of calling the White House involved deliberation.
Judge Geraci also rejected Wright-Darrisaw’s request not to apply a three-level increase because the victim of the threat was a government official and to adopt an unspecified decrease in the offense level to account for her history of mental health issues.
Judge Geraci based his rejections on those issues on the fact that the government official was the president of the United States and that Wright-Darrisaw’s history of threatening conduct did not warrant a reduction. He also considered her deceptive conduct after the call, according to the decision.
The history, which he called “scary,” included threats against President Bush, the sheriff and other officials, threats to kill neighbors, shoot a cousin and slit the throat of a Walmart employee, as well as the possession of a knife and threatening to blow up a bomb at Monroe Community College.
“To threaten the president of the United States puts a lot of actions in motion and it should,” Judge Geraci wrote. “Because we have seen a history [of] this over our lifetime where a president being shot or killed has a tremendous effect on our society.”
Wright-Darrisaw argued the District Court erred by confusing the deliberate call to the White House with a spontaneous threat made at the end of the call, saying the threat was a “single impulse” or a “single thoughtless response to a particular event.”
The Second Circuit found Judge Geraci’s explanation for not applying a four-level decrease may have been too sweeping in what constitutes deliberation under U.S. Sentencing Guidelines Section 2A6.1(b)(6), which call for a four-level reduction if the offense involved is a single instance evidencing little or no deliberation; and other factors did not apply.
The higher court vacated Wright-Darrisaw’s sentence and sent the case back down so the District Court could re-analyze the amount of deliberation involved in her communication of her threat, suggesting the court look at case law from sister circuits, citing cases from the Eleventh, Eighth and Seventh circuits.
The Second Circuit notes the sister circuits, in examining the language of Section 2A6.1(b)(6) and deciding whether or not to apply the four-level reduction, have considered 1) whether and under what circumstances the threat itself had been repeated and 2) if there is evidence of planning or some effort to carry out the threat.
“It is undisputed that the particular threat here was not repeated,” Circuit Judge Peter W. Hall wrote in U.S. v. Christine Wright-Darrisaw (14-1809-cr). “The issue is therefore whether there is sufficient evidence of planning or some effort to carry out the threat.”
Also on the panel were Circuit Judges Guido Calabresi and Susan L. Carney. They agreed the call itself showed deliberation, but questioned whether the “incoherent” threat made at the end of the call involved the sort of deliberation required by the law.
“Accordingly, because it appears that the District Court may have conflated the deliberation involved in making the phone call to the White House with the deliberation involved in communicating the specific threat against the president, we vacate the sentence and remand for further consideration of whether Wright-Darrisaw is entitled to the four-level decrease in her offense level,” the panel decided.
It further noted the sentence should be reduced if Judge Geraci decides Wright-Darrisaw’s threat was made with little or no deliberation or re-imposed if he finds it was made with the deliberation defined in the sentencing guidelines.
Karaszewski said a four-level reduction would reduce the sentencing range from 27 to 33 months to 18 to 24 months. He said Judge Geraci, should he decide a four-level reduction is appropriate, still has the discretion to impose sentence outside of the sentencing guidelines and could-re-sentence Wright-Darrisaw to the original 33 months she received.
Under the original sentence, Wright-Darrisaw is scheduled to be released on Oct. 3. She is housed at Waseca Federal Correctional Institution in Minnesota.
The Second Circuit is also waiting to make a decision on Wright-Darrisaw’s challenge to her conviction of threatening to kill the president until the U.S. Supreme Court issues its decision in U.S. v. Elonis, 730 F.3d 321 (Third Circuit 2013), dealing with a similar issue, and whether Wright-Darrisaw’s threat constituted a “true threat” under Title 18 U.S. Code Section 871(a).
In the other case, Anthony Elonis of Eastern Pennsylvania was convicted of four counts of making interstate death threats on Facebook to local law enforcement, his ex-wife, an FBI agent and an unspecified kindergarten class. Elonis claims his words were part of song lyrics. He is challenging his conviction based on his First Amendment rights to free speech.
The U.S. Supreme Court heard arguments on Dec. 1 and has yet to issue its opinion. The question presented was whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island and Vermont; or whether it is enough to show a “reasonable person” would regard the statements as threatening, as held by other federal courts of appeals and state courts of last resort.
The Supreme Court also directed the parties to argue whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. Section 875(c) requires proof of the defendant’s subjective intent to threaten.