UNITED STATES of America, Plaintiff-Appellee, v. Thomas David HAGBERG, Defendant-Appellant, 138 F. App'x 949

MEMORANDUM 1. There was sufficient evidence to convict Hagberg of sending threatening letters. The jury instructions were adequate, as no specific intent to injure the victims was required to convict. See Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1058, 1076 n. 9 (9th Cir.2002) (en banc). Defendant’s conviction did not violate the First Amendment because threats are not protected under the Constitution. See Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). 2.

We have no jurisdiction to review the district court’s discretionary decision to deny downward departures for defendant’s mental condition and for voluntary disclosure of the crimes. See United States v. Linn, 362 F.3d 1261, 1262 (9th Cir.2004). 3. There was no plain error in the district court’s decision to deny the requested adjustment for acceptance of responsibility because Hagberg denied the essential elements of the crime and put the government to its burden of proof at trial. See United States v. Innie, 7 F.3d 840, 848 (9th Cir.1993). 4.

Because the district court enhanced Hagberg’s sentence after making findings of fact, we remand to the district court for further proceedings in accordance with United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). The conviction is AFFIRMED and the sentence enhancement issues are REMANDED under United States v. Ameline for limited reconsideration. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.