Petition for Writ of Certiorari — Romney Christopher Ellis, Petitioner v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

ROMNEY ELLIS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BJORN E. BRUNVAND

Brunvand Wise, P.A.

615 Turner Street

Clearwater, Florida 33756

Ph: (727) 446-7505

Email: bjorn@acquitter.com

Florida Bar No. 0831077

Counsel of Record for Petitioner

QUESTIONS PRESENTED

I.

Whether, in sentencing in cases involving threatening or harassing

communications, the six-level offense level enhancement under U.S.S.G. §

2A6.1(b)(1), for an offense involving any conduct evidencing an intent to carry out

the underlying threat, is applicable when the defendant commits no overt acts in

furtherance of the threats at issue?

il

LIST OF PARTIES

The parties to the judgment from which review is sought are the Petitioner and

appellant in the lower court, Romney Ellis, and the Respondent and appellee in the

lower court, the United States of America.

iii

TABLEOF CONTENTS

Page

Questions Presented 0.0... scccesesscesscsssscsssssssssessssssssssssssssecsesssarsesessesesessenesrsnensessesesnensneeses i

List of Parties ..0......cccccecsscecssesscsccsscsscssensscescsssssscsssssscsssnssosssssessseseeeesseenssessenseesaeseensaseneesases ill

Table of Contents ..........:cscsscssecsssssessssscssecseessscecenseseescessesesesassasssessscessensssessseseseecceseenssneeseneees iv

Table of Cited Authorities...........cccssssessesstesessccsescsesssscsesssessssssscssssesnsssesseesstsesseessseeeesneseenes Vv

Opinion Below .........cccssesssscccssscssesecenessensseesesssssscscsssscsssssscsusssssssseeessssnsesaeesesseseeaesesaesessensseesaes 1

Grounds for Jurisdiction ........ccceccesscetsesesecccesceeeseessssssscsssecssesssssesessssuseneseeseeseseceesensenensenenees 1

Constitutional and Statutory Provisions Involved ...0...... ccc sscsseeeccesssssscesseesesseseseneesees 2

Statement of the Case.........ccsscssscscsrssssseeesesseccsscsssesssssecssessssscssssssssscsessssssseceeseenesrenseaessees 5

Reasons for Granting the Petition ............ccsesseceecssesceeseessessessscsssssessessessessessessesseseessaeens 10

I. THE QUESTION OF WHETHER THE LOWER COURTS ERRED IN

UPHOLDING A USS.G. § 2A6.1(b)1) OFFENSE LEVEL

ENHANCEMENT FOR CONDUCT EVIDENCING AN INTENT TO

CARRY OUT A THREAT WHEN THE PETITIONER COMMITTEDNO

OVERT ACTS IN FURTHERANCE OF THE THREATS AT ISSUE............ 12

OZ) 0K) 00 t=) (0) o 19

APPENDICES Page

Appendix A: The Eleventh Circuit Opinion Below ..0.......ceessssseceeseeeeeseeeseseseeseneseneeeees A

iv

TABLEOF CITED AUTHORITIES

Cases Page(s)

United States v. Barbour,

70 F.3d 580 (11th Cir. 1995) .....escsssssssssecsssessssessseeessseessssesssneesssessseesssessssees 10, 18, 15

United States v. Philibert,

947 F.2d 1467 (Lith Cir, 1991)... ecssssesssssstessssessssssecsssssesssssesssneessssssesssseessssneesses 15

United States v. Rose,

315 F.3d 956 (8th Cir. 2008) ......cccscssesssssssssssssessssscsnccsccssssecsscssssusescseeaeencensenseensencens 7,15

United States v. Scott,

MAL F.3d 1822 (11th Cir. 2006) .....cccccccccccccsssscscececescscsceccecececeevsccecsssessccsscsessessssseees 16

Constitutional Provisions

USS. CONST. amend. Vu... ccesessesseseessssetsenseseecessccasscsccacsssceessssssossensessesesssesoessasessesssoesens 2

Statutesand Rules

18 U.S.C. § 875 wieecessscesscestessesecesesessercecsesecesnensseseeasesscssessessssseseeeessseedsteseesseasseasascesssssensnanens 5

18 U.S.C. § 1716 oe eessetceessteccssscseessesssssesssesssesessnssssesescsessseseseseassasesssessesssossesssscsessesesesens 5

U.S.S.G. § 2AG.1 oe ccecsecesesecencscsensscscscscssssscsessssscscscssassesececucssssacscscsesesseeeeaees 2-6, 10, 12-18

28 ULS.C, § 1254 oe ecsssscsesssnenensesceesnssscsssececceessssseececsesescssassssnsesesssessscsseecsssssessaseessssosoeeas 1

SUP. CTR. 10... esscsesscececssceceseensesecscssscesseecenssesssseceesenessssessesosessasasesesesecssasseessnsasssassnsesnansees 18

OPINION BELOW

The United States Court of Appeals for the Eleventh Circuit affirmed the

judgment of the district court in an unpublished opinion, United States v. Romney

Ellis, --- Fed.Appx. ----, No. 21-10091 (11th Cir. Apr. 14, 2022), which is attached

hereto as Appendix A.

GROUNDS FOR JURISDICTION

The United States Court of Appeals for the Eleventh Circuit issued its panel

opinion on April 14, 2022. See Appendix A. Petitioner seeks the jurisdiction of this

Court pursuant to 28 U.S.C. § 1254(1) through the filing of the instant petition for a

writ of certiorari.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. CONST. amend. V:

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy of life or limb, nor shall

be compelled in any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due process of law; nor

shall private property be taken for public use without just compensation.

U.S.S.G. § 2A6.1:

§ 2A6.1. Threatening or Harassing Communications; Hoaxes; False Liens

(a) Base Offense Level:

(1) 12; or

(2) 6, if the defendant is convicted of an offense under 47 U.S.C. §

223(a)(1) (C), (D), or (E) that did not involve a threat to injure a person

or property.

(b) Specific Offense Characteristics

(1) Ifthe offense involved any conduct evidencing an intent to carry out

such threat, increase by 6 levels.

(2) If(A) the offense involved more than two threats; or (B) the defendant

is convicted under 18 U.S.C. § 1521 and the offense involved more than

two false liens or encumbrances, increase by 2 levels.

(3) If the offense involved the violation of a court protection order,

increase by 2 levels.

(4) If the offense resulted in (A) substantial disruption of public,

governmental, or business functions or services; or (B) a substantial

expenditure of funds to clean up, decontaminate, or otherwise respond

to the offense, increase by 4 levels.

(5) If the defendant (A) is convicted under 18 U.S.C. § 115, (B) made a

public threatening communication, and (C) knew or should have known

that the public threatening communication created a substantial risk of

inciting others to violate 18 U.S.C. § 115, increase by 2 levels.

(6) If (A) subsection (a)(2) and subdivisions (1), (2), (3), (4), and (5) do not

apply, and (B) the offense involved a single instance evidencing little or

no deliberation, decrease by 4 levels.

(c) Cross Reference

(1) If the offense involved any conduct evidencing an intent to carry out

a threat to use a weapon of mass destruction, as defined in 18 U.S.C. §

2332a(c)(2)(B), (C), and (D), apply § 2M6.1 (Weapons of Mass

Destruction), if the resulting offense level is greater than that

determined under this guideline.

COMMENTARY

<Statutory Provisions: 18 U.S.C. §§ 32(0), 85(b), 871, 876, 877, 878(a), 879,

1038, 1521, 1992aAD, (@AO, 2291 (a8), 2291(e), 2292, 2332b(a(2); 47

USC. § 223@Q)0K0C)-@; 49 U.S.C. _§ 46507. For additional statutory

provision(s), see Appendix A (Statutory Index)>

<Application Notes:>

<1. Scope of Conduct to Be Considered.--In determining whether subsections

(b)(1), (b)(2), and (b)(3) apply, the court shall consider both conduct that

occurred prior to the offense and conduct that occurred during the offense;

however, conduct that occurred prior to the offense must be substantially and

directly connected to the offense, under the facts of the case taken as a whole.

For example, if the defendant engaged in several acts of mailing threatening

letters to the same victim over a period of years (including acts that occurred

prior to the offense), then for purposes of determining whether subsections

(b)(1), (b)(2), and (b)(3) apply, the court shall consider only those prior acts of

threatening the victim that have a substantial and direct connection to the

offense.>

<2. Applicability of Chapter Three Adjustments. --Ifthe defendant is convicted

under 18 U.S.C. § 1521, apply § 3A1.2 (Official Victim).>

<3. Grouping.--For purposes of Chapter Three, Part D (Multiple Counts),

multiple counts involving making a threatening or harassing communication

to the same victim are grouped together under § 3D1.2 (Groups of Closely

Related Counts). Multiple counts involving different victims are not to be

grouped under § 3D1.2.>

<4. Departure Provisions.-->

<(A) In General.--The Commission recognizes that offenses covered by this

guideline may include a particularly wide range of conduct and that it is not

possible to include all of the potentially relevant circumstances in the

offense level. Factors not incorporated in the guideline may be considered by

the court in determining whether a departure from the guidelines is

warranted. See Chapter Five, Part K (Departures).>

<(B) Multiple Threats, False Liens or Encumbrances, or Victims; Pecuniary

Harm.--Ifthe offense involved (i) substantially more than two threatening

communications to the same victim, (ii) a prolonged period of making

harassing communications to the same victim, (iii) substantially more than

two false liens or encumbrances against the real or personal property of the

same victim, (iv) multiple victims, or (v) substantial pecuniary harm to a

victim, an upward departure may be warranted.>

<Background: These statutes cover a wide range of conduct, the seriousness

of which depends upon the defendant's intent and the likelihood that the

defendant would carry out the threat. The specific offense characteristics are

intended to distinguish such cases.>

<Subsection (b)(5) implements, in a broader form, the directive to the

Commission in section 209 of the Court Security Improvement Act of 2007,

Public Law 110-177.>

STATEMENT OF THE CASE

The instant case arose from communications, via mail, that Petitioner Romney

Ellis had with his ex-wife. (Doc. 1, 6.) Mr. Ellis and his ex-wife were married from

February 14, 2009 through December 29, 2014. (Doc. 1 at 4.) Following their divorce,

the parties had a contentious relationship during which Mr. Ellis allegedly sent

undesirable communications to his former wife. (Doc. 1 at 4-18.) During the events

in question, Mr. Ellis was residing in Indiana, while the victim was residing in

Tampa, Florida. (Doc. 1 at 15-18.)

Mr. Ellis was indicted in the United States District Court for the Middle

District of Florida on one count each of Making Interstate Threats under 18 U.S.C. §

875(c) and Mailing Injurious Articles under 18 U.S.C. §§ 1716(a) and 1716()(1). (Doc.

6.) As to count one, the indictment charged that on October 2, 2019, Mr. Ellis

communicated a threat to the victim to decapitate her and burn her alive. (Doc. 1.)

That threat was communicated via text messages sent from a business phone

connected to Mr. Ellis. (Doc. 28 at 4-5.) The text messages from that date read:

October 2, 2019 (16:24 UTC-4) — I would love to see you set on fire.

October 2, 2019 (16:24 UTC-4) — While you are still alive.

October 2, 2019 (16:24 UTC-4) —I’ll set your boyfriend on fire right next

October 2, 2019 (16:24 UTC-4) — You

October 2, 2019 (16:26 UTC-4) — I hate you so fucking much more than

I’ve ever had anybody in my whole life. I will rip your head off your

shoulders and shit down your throat.

October 2, 2019 (16:30 UTC-4) — I’m coming to get you [Victim 1’s first

name] I promise you that.

(Doc. 28 at 4-5.) As to count two, Mr. Ellis was alleged to have mailed to the victim’s

residence a package that contained a dead rat, a black rose, a Bible verse, and a letter.

(Doc. 28 at 2-3.)

On April 23, 2020, Mr. Ellis entered a guilty plea to both counts of the

indictment. (Doc. 83.) In the proposed factual basis, the Government listed various

text message communications dated between September 4, 2019 and October 27,

2019. (Doc. 28 at 3-5.) Mr. Ellis admitted to having sent only the text messages listed

above that were dated October 2, 2019. (Doc. 83 at 21-23.)

Mr. Ellis proceeded to sentencing on December 9, 2020. (Doc. 94.) The

Presentence Report proposed a Sentencing Guidelines at total offense level 17 and

criminal history category IV. (Doc. 94 at 22.) At that range, the Guidelines proposed

a sentence of 37 to 46 months imprisonment. (Doc. 94 at 22.)

Mr. Ellis objected to a proposed six-level offense level enhancement under the

Guidelines for the interstate threats offense allegedly having involving conduct

evidencing an intent to carry out such threat pursuant to U.S.S.G. §2A6.1(b)(1). (Doc.

94 at 14.) Mr. Ellis asserted that he engaged in no conduct indicating that he had

any intent to actually carry out the purported threats. (Doc. 94 at 14.) He pointed

out that he was living in Indianapolis at the time of the threats, while the victim was

living in Florida — a distance of approximately 1000 miles away. (Doc. 94 at 14.) He

likewise argued that he never took any affirmative steps to carry out any of the

threats. (Doc. 94 at 16-17.)

The Government responded that threats had been ongoing over time and that

the mailing of the rodent was evidence of intent to carry out the threats. (Doc. 94 at

18.) In support of its position, the Government cited to the Eighth Circuit case,

United States vs. Rose, 315 F.3d 956 (8th Cir. 2003).1 (Doc. 94 at 19.) The district

court went on to overrule the objection, holding:

So, Mr. Armington, I note your objection, but I overrule it. I think that

just like in United States vs. Rose (sic) that Ms. Thelwell called to my

attention, 315 F.3d 956, from the Eighth Circuit, 2003, here you have

overt acts that were carried out that show that there is a furtherance of

his threats. You see the -- you know, the mailing of the dead rat, the

dead rose, the threatening letter. When you take these messages and

the mailings altogether they do evidence an intent to carry out the

threat. So your objection is noted, but overruled.

(Doc. 94 at 20.)

The Government presented at sentencing the testimony of Mr. Ellis’ former

wife. (Doc. 94 at 25-38.) It also submitted to the court letters from the ex-wife; the

ex-wife’s real estate broker, who was discussed in various communications that Mr.

Ellis was alleged to have sent; a former partner of Mr. Ellis; and a daughter of a

former partner of Mr. Ellis. (Doc. 94 at 39; PSR at 133-53.)

Mr. Ellis presented the testimony of forensic psychologist Dr. Eddy Regnier.

(Doc. 94 at 40-67.) Dr. Regnier testified to his communications with Mr. Ellis and to

evaluations he had performed on Mr. Ellis in the course of the case. (Doc. 94 at 42-

44.) Dr Regnier testified that Mr. Ellis was “struggling with mental disorder for a

greater part of his life.” (Doc. 94 at 45.) He further described that Mr. Ellis grew up

1 The transcript reflects that the Government stated the name of the case as United

States v. Burr. It appears, however, that that was either an error in the transcript

or a misstatement by the Government.

in a dysfunctional family with “an alcoholic father who beat his mother, his brother,

and himself, and he would use his body to deflect blows from his brother and would

intervene fighting with his father to avoid -- to protect his mother.” (Doc. 94 at 45-

46.) He went on to recount that Mr. Ellis served in the Air Force and received an

honorable discharge, but that he developed a substance abuse problem while serving

in the military. (Doc. 94 at 46.)

Dr. Regnier diagnosed Mr. Ellis with bipolar disorder and major depression,

and further opined that Mr. Ellis’ substance abuse was an attempt to self-medicate

against the symptoms of bipolar disorder, major depression, anxiety and the effect of

having been the victim of abuse. (Doc. 94 at 46.) Additionally, he provided:

The thing about bipolar disorder is that when bipolar disorder is under

control, these people are masters at convincing people that they're good,

that they've got things under control. They full of wit, they full of

interesting personality, they like to party, people like them in fact,

because they have lots of energy and they are funny, they can make you

laugh. But soon the bipolar disorder flips to the terrible side and they

don't have control anymore and then you get the rage, the anger, the

obsessions, the delusions, which is what we've been talking about in

court since I arrived here.

(Doc. 94 at 48.)

The Government argued for an upward departure sentence of 72 months of

total imprisonment. (Doc. 94 at 68.)

Mr. Ellis argued for a non-incarcerative sentence that would include mental

health treatment. (Doc. 19 at 33-34; 51.) He additionally moved for downward

departures under U.S.S.G. §§ 5H1.3 and 5K2.13. (Doc. 51.)

The Court denied Mr. Ellis’ sentencing request and stated that it would be

imposing a prison sentence unquestionably:

THE COURT: And that's -- that's the problem that your client has.

When he says to me -- when he says to me, "I was just trying to get my

change," I mean, come on now. And when he says to me that's black

urban speech, I'm not the kind of person that you think I am, which is

in essence what he's saying. You have got to peel the layers back and

you do see the threats and the concern.

(Doc. 91 at 31.)

THE COURT: He for sure needs help but not release him now and have

him go to some halfway house or home detention or something like that.

That isn't —

(Doc. 91 at 32.)

THE COURT: Thirty-seven to 46 months. So he is 17, IV. So what are

you asking, because he has asked me to not send him to prison. I'll tell

you that's categorically off the table. He is going to go to prison. So what

are you recommending to me, or at least if it's the same position he had,

that's fine. I'm happy to listen to it, but I can tell you that I'm

categorically rejecting it. He needs to go to prison.

(Doc. 91 at 33.)

[DEFENSE COUNSEL]: Your Honor, I would just ask that the Court

consider some sort of a component that includes the treatment that he

so desperately needs.

THE COURT: He does. I absolutely agree with you on that. He does need

treatment, and he does need regular medical care for his psychological -

- so that his psychological issues can be addressed.

[DEFENSE COUNSEL]: And I did submit a motion detailing some of

the guideline provisions that could provide for some sort of downward

departure.

THE COURT: And I did see that, of course, and I read it, but not with

the criminal history than your client has and not with the threats that

occurred here. He has to go to prison. It's just a matter of how long.

(Doc. 91 at 34.)

The District Court imposed an upward variance sentence of 58 months

imprisonment, which consisted of a 46 month term on count one to be followed by a

consecutive term of 12 months on count two. (Doc. 91 at 47.) The court also imposed

a term of three years of supervised release to run concurrently on both counts. (Doc.

91 at 47.)

Mr. Ellis then appealed the sentence to the United States Court of Appeals for

the Eleventh Circuit. He raised in the appeal the question of whether the District

Court erred as a matter of law in assessing a six-level enhancement under U.S.S.G.

§ 2A6.1(b)(1) for an offense involving conduct evidencing an intent to carry out the

underlying threats.

On April 14, 2022, the Eleventh Circuit issued a panel opinion affirming the

convictions and sentences. In so holding, the court reasoned:

The district court found that the mailing of the dead rat, together with

an explicit, threatening letter and other threatening accoutrements, an

escalation in a long history of harassing and threatening conduct toward

A.E. and her family members, demonstrated an intent to carry out the

homicidal threats Ellis made. We agree. Ellis’s mailing of the rat was

close in time to his death threats, it was serious, and it represented a

progression in menacing conduct towards A.E. See Barbour, 70 F.3d at

587.

The mailing of the dead rat was directly connected to the text messages

in which Ellis threatened to kill A.E. Although the mailing of the dead

rat was pre-threat conduct, it occurred in close temporal proximity—

three months—to the text messages that formed the basis of Count One.

See Taylor, 88 F.3d at 943 (suggesting that an approximately five-month

proximity between pre-threat conduct and the threat was sufficiently

close). And during that span of time, Ellis was sending additional

threatening text messages to A.E., telling her in four separate text

10

messages to kill her-self and threatening “[rlevenge” by suggesting that

harm would come to A.E.’s sister. Doc. 62 at 5.

The mailing of the dead rat, along with a blackened rose and harassing

letter that used a racial slur, was serious. It also represented a

progression tying Ellis’s long history of menacing behavior towards A.E.

to concrete threats of violence and death. At bottom, we agree with the

district court that Ellis’s conduct of mailing the dead rat and the

subsequent death threats is substantially and directly connected. The

mailing of the rat was not a random act performed by Ellis to

emotionally disturb A.E., but an overt act consistent with a scheme of

threats and violence aimed at her.

App. A at 7-8.

This petition follows.

11

REASONS FOR GRANTING THE PETITION

I.

THE QUESTION OF WHETHER THE LOWER COURTS ERREDIN

UPHOLDING A U.S.S.G. § 2A6.1(b)(1) OFFENSE LEVEL

ENHANCEMENT FOR CONDUCT EVIDENCING ANINTENT TO

CARRY OUT A THREAT WHEN THE PETITIONER COMMITTED

NO OVERT ACTSIN FURTHERANCE OF THE THREATS AT

ISSUE

The lower courts upheld the application of the six-level offense level

enhancement under U.S.S.G. § 2A6.1(b)(1) for an offense allegedly involving any

conduct evidencing an intent to carry out the underlying threat even though

Petitioner Elliscommitted no overt acts in furtherance of the threats issue. The lower

courts essentially affirmed the application of the enhancement by bootstrapping on

prior idle threats that were made to the same victim. As set forth below, the

commentary to the Guidelines did not support the application of the enhancement

under such circumstances. Perhaps more critically, the Eleventh Circuit has

developed an overbroad and imprecise standard for lower courts to follow in

determining when to apply the U.S.S.G. § 2A6.1(b)(1) enhancement. Consequently,

the district courts in the Eleventh Circuit, as well as in other circuits, are in need of

guidance from this Court on the question of when to apply the 2A6.1(b)(1)

enhancement in cases involving interstate threats.

A. The § 2A6.1(b)(1) Enhancement Applies Only to Defendants Whose

Actions Indicate an Intent to Carry out the Underlying Threat

U.S.S.G. § 2A6.1(b)(1) provides for a six-level offense level increase “if the

offense involved any conduct evidencing an intent to carry out such threat...”

12

U.S.S.G. § 2A6.1(b)(1). The commentary to Section 2A6.1 goes on to provide:

In determining whether subsections (b)(1), (b)(2), and (b)(8) apply, the

court shall consider both conduct that occurred prior to the offense and

conduct that occurred during the offense; however, conduct that

occurred prior to the offense must be substantially and directly

connected to the offense, under the facts of the case taken as a whole.

For example, if the defendant engaged in several acts of mailing

threatening letters to the same victim over a period of years (including

acts that occurred prior to the offense), then for purposes of determining

whether subsections (b)(1), (b)(2), and (b)(8) apply, the court shall

consider only those prior acts of threatening the victim that have a

substantial and direct connection to the offense.

U.S.S.G. § 2A6.1, cmt., n. 1.

The commentary in note 1 of 2A6.1, permits courts to consider pre-threat

conduct so long as it is “substantially and directly connected to the offense, under the

facts of the case taken as a whole.” Jd. The commentary, moreover, calls for courts to

make a “substantial and direct connection” determination before relying on prior acts

of mailing threatening letters in situations where multiple prior acts of mailing

threatening letters have occurred.

In light of the commentary’s directives, the Eleventh Circuit has reasoned that

“(t]he fact that a person has at some point in life engaged in dangerous or even illegal

activity is insufficient to demonstrate that that person intended to carry out any

particular threat.” United States v. Barbour, 70 F.3d 580, 587 (11th Cir. 1995). “The

purpose of the enhancement is to punish more severely the individual whose actions

indicate an intent to carry out the threat that serves as the basis for the underlying

conviction. It is not a general mandate to punish more severely people with bad

character or those generally more likely to carry out their threats.” Jd. at 587. The

13

Eleventh Circuit has similarly held that in determining whether pre-threat conduct

supports the application of the 2A6.1 enhancement, courts should consider “the

proximity in time between the threat and the prior conduct, the seriousness of

defendant’s prior conduct, and the extent to which the pre-threat conduct has

progressed towards carrying out the threat. Jd. The Eleventh Circuit later provided

that those factors are not exclusive, nor is any one of them necessarily essential.”

United States v. Taylor, 88 F.3d 938, 942 (11th Cir. 1996). The court had thereby

called for a totality of the circumstances analysis in determining “whether the facts

of the case, taken as a whole, establish a sufficiently direct connection between the

defendant’s pre-threat conduct and his threat.” Jd. at 943. In so holding, the Eleventh

Circuit has left the lower courts with a vague and overbroad standard for determining

when to apply the Section 2A6.1 enhancement.

B. The Eleventh Circuit has Promulgated a Vague and Overboard

Standard for Lower Courts to Follow in Applying the Section

2A6.1(b)(1) Enhancement

In the instant case, the Eleventh Circuit upheld the application of the

2A6.1(b)(1) enhancement even when the Petitioner committed no overt acts in

furtherance of the alleged threat. As Petitioner Ellis established in the lower courts,

the evidence did not support a conclusion that he had intent to do anything other

than cause emotional distress to the victim. The lower courts relied on the mailing

of the dead rodent, the blackened rose, and prior threatening letters to uphold the

application of the 2A6.1(b)(1) enhancement. Those acts were, however, prior threats

themselves that, in no way, evidenced an intent to carry out the later threats. In

14

contrast to the instant case, in other cases in which the 2A6.1(b)(1) enhancement has

applied, the defendants took steps in furtherance of the threats that they were

charged with carrying out. See Barbour, supra, 70 F.3d 580 (affirming the

enhancement in a case involving threats to the President when the defendant had

earlier driven from his home in Florida to Washington D.C. with a firearm and

ammunition, spent seven days attempting to locate the President, and returned home

only after learning the President was not in the United States at that time); Taylor,

supra, 88 F.3d 938 (finding the enhancement appropriate when the defendant had

spent 20 years stalking his former high school girlfriend and her family, located the

victim and her family despite them having moved twice and changed their telephone

number three times, was frequently caught surveilling the victim and her family,

called the victim numerous times, had taken several trips to where they lived in

Florida, had hired a private investigator to investigate them, and attempted to hire

his former cellmate to murder the victim and/or her husband); United States v. Rose,

315 F.3d 956, 958 (8th Cir. 2003) (finding the enhancement appropriate when the

defendant “carried out overt acts in furtherance of his threats by calling the [the

victim’s] home, posting information about [the victim’s] children on pornographic web

sites, sending letters to [the victim’s] neighbors, and finding [the victim’s] address,

determining its location and obtaining directions to the site) compare with United

States v. Philibert, 947 F.2d 1467, 1468 (11th Cir. 1991) (finding the enhancement to

be inapplicable in a case in which the defendant made two threats to kill his

supervisor nine months apart and had purchased weapons and ammunition in

15

between the two threats; reasoning that “there was no evidence to suggest any

connection whatever between appellant’s acquisition of firearms in June and any

effort to carry out the threat made...a reasonable conclusion from the facts of record

is that, just as he had done in 1988, appellant made the threatening phone call to Mr.

Steineke “because he felt like it’; there is no evidence whatever that he had any

intention of carrying out the threat. id. at 1471); United States v. Scott, 441 F.3d 1322

(11th Cir. 2006) (finding the 2A6.1(b)(1) enhancement inapplicable in a case in which

the defendant mailed two letters to a federal judge from a federal prison).

Mr. Ellis, on the other hand, merely made repeated idle threats, however

emotionally disturbing they may have been, over an extended period of time. As the

Guidelines commentary cautions, such prior threats must not be used to support the

2A6.1(b)(1) enhancement unless they were substantially and directly connected to the

offense. In the instant case, the prior threats were not connected to the threats for

which Mr. Ellis was convicted — they were merely part of an ongoing pattern of idle

threats.

More critically, the mailing of the rat, as charged in count two, was not

indicative of any intent to carry out the text messaged threats charged in count one.

Neither was the mailing of the blackened rose or the prior threatening letters. The

mailing of the rat by Mr. Ellis was a calculated attempt to continue to inflict

emotional harm, but was not a step towards carrying out the text messaged threats.

Mr. Ellis took no steps to arm himself or to travel to Florida in connection with the

October 2019 threats. Instead, by mailing the rat package, Mr. Ellis was attempting

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to continue to cause emotional distress from afar, just as he had done with the text

message threats. The only connection between the mailing of the rat and the text

message threats was that both acts were intended to cause distress to the victim. In

no way was the mailing of the package an overt act in furtherance of the text

messaged threats.

Indeed, the alleged continuing nature of the threats is evidence of Mr. Ellis’

intent to not carry out the threats because he did not act on the prior threats of

violence. The quantity of threats made cannot be indicative of an intent to carry out

any of the threats. To be sure, if a person has been making threats over an extended

period of time without carrying out any of the threats, it stands to reason that the

person would have no intent to carry out any similar subsequent threats.

Nonetheless, the Eleventh Circuit’s ruling essentially provides for lower courts to

apply the section 2A6.1(b)(1) enhancement whenever a defendant has engaged in an

ongoing pattern of making threats. The Guidelines simply do not provide for such an

application of the enhancement.

Mr. Ellis now, thereby, requests this Honorable Court to grant certiorari to

determine the question of whether the Section 2A6.1(b)(1) enhancement can apply

when a defendant does not commit any over act in furtherance of the threat at issue.

Given the substantial impact that a six-level enhancement can have on a defendant’s

Sentencing Guidelines calculation, district courts are in need of greater direction in

making the determination as to when that enhancement should apply. As discussed

above, the Eleventh Circuit’s overbroad and arbitrary standard for applying the

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enhancement has led to inconsistent and capricious applications. Consequently,

Petitioner Ellis respectfully submits that the question presented herein is one of great

importance that has not yet been directly decided by this Court and one which will

arise frequently in the lower courts in the future. SUP.CT.R.10(c). In addition, given

the specific facts of the instant case and the absence of any evidence of Petitioner

Ellis having committed any over act in furtherance of the threat at issue, he

respectfully requests this Honorable Court to exercise its supervisory powers to

consider whether the Eleventh Circuit “departed from the accepted and usual course

of judicial proceedings” in upholding the application of the Section 2A6.1(b)(1)

enhancement. SUP. CT. R. 10(a).

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CONCLUSION

Based on the foregoing, the Petitioner respectfully requests that this

Honorable Court grant this petition for a writ of certiorari.

Respectfully Submitted on this 12 day of August 2022,

19

ESS

BJORN E. BRUNVAND

Brunvand Wise, P.A.

615 Turner Street

Clearwater, Florida 33756

Ph: (727) 446-7505

Email: bjorn@acquitter.com

Florida Bar No. 0831077

Counsel of Record tor Petitioner

APPENDIXA

ELEVENTH CIRCUIT OPINION BELOW