Appeal from the United States District Court for the District of North Dakota.
The opinion of the court was delivered by: Smith, Circuit Judge.
Submitted: November 19, 2009
Before MURPHY, SMITH, and BENTON, Circuit Judges.
Robert W. Rutherford pleaded guilty to two counts of using interstate communications to transmit a threat in violation of 18 U.S.C. § 875(c) and was sentenced to 74 months' imprisonment on consecutive 37-month sentences. On appeal, Rutherford argues that the district court*fn1 abused its discretion by imposing consecutive, rather than concurrent, sentences for the two counts. We disagree and affirm the judgment.
In 2006, Dean Kessel sued Rutherford for damages caused by an assault that Rutherford committed against Kessel. Richard Baer, a Bismarck, North Dakota attorney, represented Kessel. Rutherford was in custody at that time. While incarcerated, Rutherford met Kris Krumweide, who was subsequently released from jail. Thereafter, Rutherford sent Krumweide letters from jail requesting Krumweide's help in stopping Kessel and Baer from executing on Kessel's judgment against Rutherford. Rutherford offered Krumweide money and guns if he would kill Baer and Kessel. Through a third party, Rutherford offered Krumweide instructions on where to find guns and shotgun shells in a house in South Dakota. Rutherford also sent Krumweide maps showing where Baer and Kessel lived in Bismarck and where Baer's law office was located. Rutherford also sent Krumweide pictures of Kessel's house and the name of Baer's secretary. Rutherford promised to pay Krumweide $15,000 once he killed Baer and Kessel.
Rutherford sent Krumweide some money, but Krumweide instead contacted Baer and gave him the letters and maps, which Baer then turned over to authorities. Rutherford was indicted on January 9, 2008, on three counts of conspiracy to use interstate commerce facilities in the commission of murder for hire, in violation of 18 U.S.C. § 1958, and two counts of using interstate communications to transmit a threat, in violation of 18 U.S.C. § 875(c). On November 24, 2008, Rutherford pleaded guilty to the two counts of using interstate communications to transmit a threat in exchange for the government dropping the § 1958 charges.
At Rutherford's change-of-plea hearing, the parties agreed that the Sentencing Guidelines range for each count would likely be "30-37 months or certainly no greater than 37-46." The government recommended "seven years incarceration, which would require . . . consecutive terms." Through counsel, Rutherford responded that "if the court imposes a sentence which the government recommends, we likely would take the position that that is above the Guideline range and have that right to proceed [with appeal]." The district court informed Rutherford that the maximum penalty for each of the two charges was up to five years' imprisonment and "[s]o you're looking at the possibility in this case of a maximum of ten years of imprisonment . . . ." The court also informed Rutherford that the sentences could be either consecutive or concurrent sentences.
The district court sentenced Rutherford to 74 months' imprisonment. Both Baer and Kessel testified at the sentencing hearing. Baer testified that he continued to fear Rutherford, even though Rutherford was in custody. The letters and maps Rutherford sent to Baer were admitted at the sentencing hearing. The government offered photos of Kessel's assault injuries taken while he was in the emergency room.
The parties agreed that the Sentencing Guidelines range for each offense was 37 to 46 months' imprisonment, which the district court accepted. The government requested a 74-month term of imprisonment (two consecutive 37-month sentences), while Rutherford argued for concurrent sentences within the 37-to-46 month range. The district court stated that "[i]n imposing a consecutive sentence, I've considered not only Chapter 3, but particularly Section 5G1.2 of the Sentencing Guidelines that address sentencing in multiple counts." The court also discussed its consideration of the 18 U.S.C. § 3553(a) factors.
Rutherford's lone argument on appeal is that the district court misapplied § 5G1.2 of the Sentencing Guidelines and as a result abused its discretion in ordering consecutive, rather than concurrent, sentences. Rutherford argues that the district court could not have sentenced him to more than the statutory maximum sentence of 60 months. Rutherford bases his argument on 18 U.S.C. § 875(c), U.S.S.G. § 5G1.2(c), as well as United States v. Rogers, 423 F.3d 823 (8th Cir. 2005), and United States v. Ervasti, 201 F.3d 1029 (8th Cir. 2000). These authorities, Rutherford contends, require that his sentences run concurrently, not consecutively.
In response, the government argues that the district court properly considered the Guidelines, as well as other sentencing factors in § 3553(a) when it sentenced Rutherford to a 74-month consecutive term of imprisonment. The government argues that § 5G1.2 is not controlling, but advisory and that the district court has discretion to impose either consecutive or concurrent sentences under 18 U.S.C. § 3584.
Our review of criminal sentences is limited. Gall v. United States, 552 U.S. 38, 46 (2007). We review interpretation of the Sentencing Guidelines de novo and a district court's application of the Guidelines to the facts for clear error. United States v. Rollins, 552 F.3d 739, 742 (8th Cir. 2009). We review all sentences, including ...