§2A6.1 Cut That Did Not Change the Sentence

On November 6, 2026, the Third Circuit affirmed a ten-month prison sentence for transmitting interstate threats. In United States v. Pollard, No. 26-1860, the court did not decide whether the sentencing judge should have applied a four-level reduction under USSG §2A6.1(b)(6). It held that any error in that step was harmless, because the judge said the prison term would have been the same either way. Read the decision (PDF).

What happened

In September 2024, an election worker posted on Facebook to recruit volunteers to watch the polls. John Courtney Pollard sent a text expressing interest. Nine minutes later, he sent three more texts. The opinion says each of those three messages contained threats of violent harm and death.

The FBI traced the messages to Pollard. A grand jury indicted him on one count of making interstate threats, in violation of 18 U.S.C. § 875. He pleaded guilty in the Western District of Pennsylvania, No. 1:24-cr-00031, without a plea agreement. Chief Judge Cathy Bissoon sentenced him.

Before the hearing, the two sides gave the court different ranges under the 2024 Guidelines Manual. The government asked for a two-level increase because "the offense involved more than two threats," citing §2A6.1(b)(2)(A). That increase would have produced a range of 10 to 16 months. Pollard asked for a four-level reduction because the "offense involved a single instance evidencing little or no deliberation," citing §2A6.1(b)(6). That reduction, without the increase, would have produced a range of 0 to 6 months.

The district court applied neither adjustment. It treated the three threatening texts as "more akin to a continuing thought," so it did not add the two levels for more than two threats. It also refused the four-level reduction. The judge said Pollard showed deliberation in getting the number, typing it out, sending a first message that was not a threat, and then, after no reply, sending a threat.

With neither adjustment, the court calculated a total offense level of 10 and a criminal history category of I. The advisory range was 6 to 12 months. The opinion states that total. It does not list every step between the guideline's starting number and that total of 10. The offense level is the number that, with the criminal history category, produces the range.

The court then heard from the person who received the texts, from one of Pollard's acquaintances, and from Pollard. It imposed 10 months in prison, one year of supervised release, and a $5,000 fine. The judge said the court had taken a "holistic view," weighing acceptance of responsibility and the lack of criminal history against the seriousness of the offense, protection of the public, just punishment, deterrence, and rehabilitation. The judge also said that "ten months would have been the Court's sentence" whether or not it applied the increase or the reduction, and that there was "no scenario under which a lesser sentence would be sufficient." The judge said a prison term was required for general deterrence and for specific deterrence.

Pollard appealed. The case was submitted on the briefs on September 23, 2026. Circuit Judges Krause, Porter, and Ambro decided it on November 6. Judge Porter wrote the opinion. It is not precedential. The caption says it is not an opinion of the full court and, under Internal Operating Procedure 5.7, is not binding precedent.

The four-level reduction

USSG §2A6.1 is the guideline for threatening or harassing communications, hoaxes, and false liens. For most of the statutes it covers, including a threat case that is not a narrow telephone-harassment conviction under 47 U.S.C. § 223, the base offense level in subsection (a)(1) is 12. The same subsection numbers appear in the 2026 Guidelines Manual. The district court cited the 2024 Manual, which was the edition it used at sentencing.

A court generally uses the Manual in effect on the day of sentencing (USSG §1B1.11(a)). If that Manual would raise the range in violation of the Ex Post Facto Clause, the court uses the Manual in effect on the date of the offense (§1B1.11(b)(1); Peugh v. United States, 569 U.S. 530 (2013)).

Subsection (b)(6) is a decrease, not an increase. It applies only when two things are both true. First, the lower base in subsection (a)(2) does not apply, and none of the increases in subdivisions (b)(1) through (b)(5) apply. Second, "the offense involved a single instance evidencing little or no deliberation." When both are true, the court decreases by 4 levels.

The two-level increase Pollard avoided is subdivision (b)(2)(A): the offense involved more than two threats. Application Note 1 tells the court, when it decides whether (b)(1), (b)(2), or (b)(3) applies, to consider conduct during the offense and conduct before the offense that is substantially and directly connected to it. The district court found that the three texts were one continuing thought, so it did not apply (b)(2)(A). That finding removed one bar to the four-level decrease. The decrease still required little or no deliberation. The judge found deliberation, and the Third Circuit did not decide whether that finding was wrong.

Why the panel called any error harmless

A mistake in the advisory range is a procedural error. The Third Circuit reviews that kind of error for harmlessness. The opinion cites United States v. Raia, 993 F.3d 185, 195 (3d Cir. 2021), for that rule. An error is harmless when the record shows a "high probability" that the miscalculation did not affect the sentence. The opinion quotes United States v. Jackson, 132 F.4th 266, 278 (3d Cir. 2025), for that phrase, and Raia for the further point that "high probability" means a "sure conviction" the district court would impose the same sentence.

The panel did not decide whether Pollard was entitled to the reduction. It relied on United States v. Zabielski, 711 F.3d 381, 387 (3d Cir. 2013), which allows the court of appeals to skip a guidelines dispute when the record shows the range did not affect the sentence imposed. The district judge's statement that the term would have been 10 months either way was the kind of "explicit statement" Zabielski describes as useful. The opinion also points to Molina-Martinez v. United States, 578 U.S. 189, 200–01 (2016), which explains that a judge's statements can show, on plain-error review, that a guidelines mistake did not prejudice the defendant.

Pollard called the judge's statement a generic disclaimer. The panel disagreed. It said the judge had reviewed the parties' written positions, discussed the facts behind both the increase and the reduction, and decided to apply neither one. The hearing covered the crime and Pollard's life. The judge called the case one of the tougher cases the court had decided. On that record, the panel found a high probability that the sentence would have been 10 months even if the range had included the four-level reduction.

The guidelines have been advisory since United States v. Booker, 543 U.S. 220 (2005). After the court finds the range, it chooses a sentence under the factors in 18 U.S.C. § 3553(a). A term outside the range is a variance. Our page on departures and variances explains that difference. Our page on the § 3553(a) factors lists what the statute requires the judge to consider.

Zone A, Zone B, and the size of the gap

Pollard also argued that the reduction could have been the difference between prison and a sentence with no confinement, so the case had to go back. Under the range he wanted, 0 to 6 months, the 2024 Manual's §5C1.1(b) allowed probation without conditions of confinement. The range the judge used, 6 to 12 months, sits in Zone B. The opinion says §5C1.1(c)(3) of that Manual allowed probation only with conditions of confinement.

The panel said it has never required a remand merely because one proposed range is in Zone A and the range the judge used is in Zone B. It also noted that Pollard had told the district court the judge could impose probation under either calculation. The judge explained why a sentence without prison was not sufficient.

On November 1, 2026, Amendment 841 collected the zone options in one place. The months in each zone did not change. Our note on how the zones work after November 1 describes the current list in USSG §5A1.1 and §5C1.1. Pollard applied the 2024 Manual, not that later list.

Pollard argued next that the judge never calculated the reduced range and never said a variance would be required to reach 10 months. The panel said the "same sentence either way" statement covered three ranges: the government's range with the two-level increase, Pollard's range with the four-level reduction, and the range the judge actually used. Because those were the only disputed adjustments, the panel said the judge necessarily knew that the reduction would require an upward variance to reach 10 months.

Finally, Pollard compared his case to United States v. Newkirk, 174 F.4th 336 (3d Cir. 2026). In Newkirk, the Third Circuit vacated a time-served sentence of just under two weeks where the range was 92 to 115 months. Pollard quotes Newkirk for the point that a larger gap between the range and the sentence calls for a fuller explanation. The panel distinguished Newkirk on two grounds stated in the opinion. The judge here gave a thorough explanation. And the gap between the bottom of Pollard's proposed range and the sentence he received was 10 months, which the opinion contrasts with a gap of over seven years in Newkirk.

Who it affects

• A person sentenced for a federal threat in Pennsylvania, New Jersey, Delaware, or the Virgin Islands. This opinion is not binding precedent. It shows how one panel treated an explicit statement that the prison term would not change.
• A person asking for the §2A6.1(b)(6) reduction. The decrease is available only when the listed increases do not apply and the offense was a single instance with little or no deliberation. A finding that the person looked up a number, typed it, and sent a later threat can be the fact a judge uses to deny the decrease. Whether that finding is clearly erroneous is a separate question. This panel did not reach it.
• A person whose judge states the sentence on the record. A clear statement that the term would be the same under each proposed range can make a guidelines dispute harmless on appeal. The statement has to be backed by a hearing that shows the judge understood the facts and the ranges. A bare line, with no discussion, is what Pollard argued he had. The panel said this record was not that.
• A person whose dispute is Zone A versus Zone B. This panel refused to order a new hearing for that reason alone, where the judge explained why a sentence without prison was not sufficient. The current zone rules are in the 2026 Manual. A statute can still take probation off the table. 18 U.S.C. § 3561(a) is one limit.
• A person preparing for the hearing. Written objections to the presentence report are the place to raise a guidelines dispute. Federal Rule of Criminal Procedure 32 gives 14 days after disclosure. The sentencing hearing is where the judge must calculate the range and then choose the sentence.