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Click here for the full text of this decision FACTS:Frank Guevara challenges his conviction under 18 U.S.C. 2332a of threatening to use a weapon of mass destruction. He also appeals his classification as a career offender under the sentencing guidelines. Finally, he challenges his sentence. Guevara committed what is called an “anthrax hoax.” In August 2002 he wrote and mailed a letter to United States District Judge Mary Lou Robinson. An employee at the court’s mail depository retrieved the letter and, recognizing that it was from an inmate, opened the envelope, which contained a white, powdery substance that got onto the employee’s fingers. The substance in the envelope turned out to be harmless hair gel and powdered cleanser. HOLDING:Affirmed. Section 2332a contains no requirement of future action. United States v. Reynolds, 381 F.3d 404 (5th Cir. 2004), cert. denied, 125 S. Ct. 922 (2005). Guevara claimed to have mailed anthrax, and the record is more than sufficient to sustain the conviction under its interpretation of the statutory language, the court holds. The court erroneously instructed the jury that, to convict Guevara under 2332a, it had to find that the WMD, if used as threatened, would have substantially affected interstate commerce; the statute requires only that the threat, if carried out, would have some effect, not necessarily a substantial one. The erroneous “substantially affected” language does not become law of the case, the court decides. Guevara’s conviction qualifies as a “crime of violence” under U.S. Sentencing Guidelines 4B1.2(a)(1). “Given that we uphold the “threat” status of Guevara’s anthrax hoax under Reynolds, the only determination we need make is whether, under the guidelines, WMD’s are instruments of physical force within the meaning of 4B1.2(a)(1); we have little problem concluding that they are.” The crime-of-violence determination is made exclusively pursuant to facts found by a jury, and Guevara’s classification as a career offender is not in violation of the Sixth Amendment under United States v. Booker, 125 S. Ct. 738 (2005). “Even if the guidelines were mandatory and Guevara could be sentenced only according to elements found by a jury beyond a reasonable doubt, his guidelines range would remain unchanged. As Booker instructs, however, the guidelines are merely”advisory.’ Because of Guevara’s classification as a career offender, the guidelines would”advise’ the same sentencing range irrespective of whether the adjustment circumstances existed. Finally, because the district court sentenced Guevara to the maximum allowable punishment (life) under both the guidelines and 2332a, and because the maximum sentence the court can impose, even post-Booker, remains limited to life by the terms of 2332a, there is no reason to believe that the sentencing court would sentence Guevara any differently merely because the guidelines are advisory.” OPINION:Smith, J.; Higginbotham, Smith and Benavides, JJ.

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