Sentencing; Reduction for offenses involving “a single instance evidencing little or no deliberation”; USSG § 2A6.1(b)(6); “Relevant conduct”; § 1B1.3; FRE 404(b)(2)

[This appeal was from the WD-MI.] The court held that the district court did not err by considering defendant-Osborn’s past threats against government officials when refusing to apply a four-level sentence reduction for offenses involving a single instance evidencing little or no deliberation. Osborn is an Army veteran who suffers from PTSD. He left a threating voicemail for a member of Congress. He pled guilty to threatening to assault the congressman. The district court declined to apply the four-level sentence reduction after concluding that because Osborn had previously threatened other officials, the offense involved did not meet the criteria of “a single instance evidencing little or no deliberation” under § 2A6.1(b)(6). Osborn argued that the district court erred by considering his past conduct in denying the reduction. The court noted that the prior threats against two other members of Congress were not “relevant conduct.” Thus, the district court "could not have altered Osborn’s offense level because of these prior threats.” However, it did not apply a two-level enhancement on the basis “‘the offense involved more than two threats’ under § 2A6.1(b)(2)(A).” Rather, it made a factual finding that Osborn’s threat against the congressman in this case showed “more than ‘little or no deliberation.’” The court held that “[m]aking factual determinations is a well-entrenched responsibility of the district court. Even within the constraints of trial, the district court can consider prior acts when they may be probative of motive or intent.” The court also rejected Osborn’s argument that the district court clearly erred in its factual finding that his conduct evidenced “more than ‘little or no deliberation,’” where the record indicated “Osborn was aware that he had a pattern of calling government officials about differences in policy views and threatening them.” Affirmed.