Objective “Reasonably Believable” Standard Governs “Credible Threats of Violence” under U.S.S.G. § 4C1.1, with Keene-Based Harmless-Error Backstop

Introduction

In United States v. Alexandre Ovadia, No. 24-14255 (11th Cir. Nov. 7, 2025) (unpublished, per curiam), the Eleventh Circuit affirmed a 30-month sentence imposed after a guilty plea to cyber harassment under 18 U.S.C. § 2261A(2)(B). The appeal centered on whether the district court erred in denying the two-level “zero-point offender” reduction under U.S.S.G. § 4C1.1, on the ground that the offense involved “credible threats of violence.” The panel held that, applying the ordinary-meaning rule, “credible threats of violence” means threats that are objectively “reasonably believable,” and that credibility can be established by the totality of circumstances even if the defendant was not physically proximate to the victims at the time.

The court also conducted an assumed-error harmlessness analysis under United States v. Keene, concluding that, even if the § 4C1.1 issue had been resolved in the defendant’s favor, the district court’s explicit Keene statement and the record supported the same 30-month sentence as substantively reasonable. Although unpublished and therefore nonprecedential in the Eleventh Circuit, the opinion is a detailed, persuasive clarification of a phrase that appears in multiple Guidelines provisions, with implications beyond § 4C1.1.

Summary of the Opinion

Definition and standard: The panel adopted a plain-meaning, objective standard for “credible threats of violence” in U.S.S.G. § 4C1.1(a)(3). A “credible threat” is a reasonably believable communication expressing intent to inflict harm. The court used dictionary definitions (Merriam-Webster for “credible”; Black’s Law Dictionary for “threat”) and expressly applied a reasonable-person lens.
Application to the facts: The record showed that Ovadia sent at least 217 graphic, violent threats over a prolonged period to people he knew (including a former business partner), referenced victims’ locations, and claimed he had their “movements” logged. These circumstances made the threats “reasonably believable” and disqualified him from the § 4C1.1 reduction.
Physical proximity not required: The court rejected the argument that threats cannot be “credible” if made from afar (e.g., Israel or Colorado). Given the defendant’s ties to Florida, arrest in Miami, and obsessive conduct, the threats remained objectively believable.
Attorney proffers: While acknowledging that unsworn attorney assertions are not evidence absent stipulation (United States v. Washington), the panel found sufficient evidentiary support without relying on the unobjected-to proffer that a victim lived in “Normandy.”
Keene harmlessness: Even if denying § 4C1.1 was error, it was harmless because the district court said it would have imposed the same 30-month sentence after considering the 18 U.S.C. § 3553(a) factors, and that sentence was substantively reasonable even against the lower hypothetical Guidelines range (18–24 months).
Other Guideline ruling: The district court properly limited the § 2A6.2(b)(1) “pattern of activity” increase to two levels (not four) absent a second aggravator such as the threatened use of a dangerous weapon; the government did not appeal that ruling.

Case Background

From November 2022 to March 2024, Ovadia sent at least 217 threatening emails to various recipients, including a former business partner (“R.M.”) in Miami, Florida. The messages, often typed in all caps and laden with slurs, threatened graphic violence (“I AM GOING TO KILL YOU”; “IM GOING TO DRILL HOLES THROUGH YOUR SKULL”; “IM GOING TO EAT YOUR FACE”). Several emails referenced Miami locations and claimed the sender had the victim “logged.” FBI agents tied the emails to Ovadia via IP and account records; upon return to Miami from Israel, he admitted creating accounts and sending numerous threats.

Ovadia pleaded guilty to Count 1 (relating to R.M.), with Count 2 dismissed. The presentence report applied a base level under § 2A6.2 and enhancements, yielding an advisory range initially calculated at 30–37 months. The district court sustained an objection narrowing the “pattern of activity” enhancement to two levels and recalculated the range to 24–30 months. It rejected Ovadia’s request for the § 4C1.1 zero-point reduction, finding “credible threats of violence,” and imposed 30 months, adding that it would impose the same sentence even if § 4C1.1 applied.

Analysis

Precedents and Authorities Cited

United States v. Keene, 470 F.3d 1347 (11th Cir. 2006): Authorizes an “assumed error harmlessness” approach when the district court states it would impose the same sentence regardless of a Guidelines issue and the sentence is substantively reasonable.
United States v. Grushko, 50 F.4th 1 (11th Cir. 2022): Reaffirms the two-part Keene framework and the “totality of the circumstances” analysis for substantive reasonableness; notes sentences below statutory maximums are indicators of reasonableness.
United States v. Delgado, 981 F.3d 889 (11th Cir. 2020): Advises that district courts should make Keene statements clear at sentencing when pronouncing the sentence.
United States v. Wilson, 884 F.2d 1355 (11th Cir. 1989): Places the burden on the defendant to prove guideline provisions that would reduce the offense level, applicable here to § 4C1.1.
United States v. Rogers, 989 F.3d 1255 (11th Cir. 2021); United States v. Kluge, 147 F.4th 1291 (11th Cir. 2025): Support the plain-meaning approach to Guideline interpretation; dictionary definitions may be consulted.
United States v. Washington, 714 F.3d 1358 (11th Cir. 2013): Unsworn attorney factual assertions at sentencing are not evidence absent stipulation; here, the panel found sufficient support aside from the prosecutor’s “Normandy” comment.
United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008); United States v. Rosales‑Bruno, 789 F.3d 1249 (11th Cir. 2015): Standards for substantive reasonableness and § 3553(a) balancing; courts may assign greater weight to certain factors.

Legal Reasoning

The court’s analysis proceeds in two main steps: defining “credible threats of violence” under § 4C1.1(a)(3) and then assessing harmlessness under Keene.

1) Defining “credible threats of violence” under § 4C1.1

Plain meaning and objective lens: The Guidelines do not define “credible threats of violence” in § 4C1.1(a)(3) (or in § 2D1.1(b)(2) or § 5C1.2(a)(2), where identical language appears). The panel thus applied the ordinary-meaning canon, using dictionary definitions, and held that a “credible threat” is a reasonably believable communication of intent to inflict harm. The standard is objective: would a reasonable observer find the threat believable in context?
Evidence sufficiency: The PSI and factual proffer established that Ovadia made repeated, graphic threats; knew the victims personally; referenced locations consistent with the victims; and claimed to be tracking their movements. The district court permissibly found, based on “the volume and frequency” of threats and the knowledge of the victims’ whereabouts, that a reasonable person would deem the threats credible.
Physical proximity is not dispositive: The defendant’s contention that threats cannot be “credible” if sent from another state or country was rejected. The court reasoned that past residence in Florida, arrest in Miami, and obsessive conduct made it reasonable to believe he could and might act on threats. The law does not require evidence of travel plans or weapon purchases to deem a threat credible; credibility turns on reasonable believability in context, not immediacy.
Allocation of burden: Consistent with Eleventh Circuit precedent, the defendant bears the burden to show that a mitigating guideline (like § 4C1.1) applies. The record supported the district court’s finding that the defendant did not carry that burden because his offense involved credible threats of violence.
Prosecutorial proffers at sentencing: While confirming that attorney assertions are not evidence absent agreement, the panel observed that the defendant did not object to the prosecutor’s “Normandy” reference and, in any event, the PSI independently established the core facts needed to find credibility (Miami residence, knowledge cues, volume of threats).

2) Harmless error via Keene

Adequacy of the Keene statement: The district court stated it would impose the same 30-month sentence even if § 4C1.1 applied and expressly noted it “couldn’t imagine” imposing less than 30 months after considering the § 3553(a) factors. Although the phrasing began with “I think I am pretty confident,” the court immediately clarified its position. That timing and clarity sufficed under Keene and Delgado.
Substantive reasonableness under a lower range: If § 4C1.1 had applied, the recalculated range would have been 18–24 months (offense level 15, CHC I). The court explained why an upward variance to 30 months would still be reasonable: the graphic nature and high volume of threats; emotional and therapeutic impact on victims; defendant’s lack of remorse and equivocation; pending cases suggesting aggressive conduct; multiple custodial disciplinary incidents; and a sentence well below the 60‑month statutory maximum.

Impact and Significance

Although unpublished, the opinion provides a detailed, practical framework that will likely be cited persuasively in district courts across the Eleventh Circuit and possibly elsewhere:

Uniform objective standard: The “reasonable-believability” standard supplies an administrable test for “credible threats of violence,” likely to inform applications not only under § 4C1.1 but also under § 2D1.1(b)(2) (drug offense enhancement for use or credible threats of violence) and § 5C1.2(a)(2) (the “safety valve” disqualifier). Litigants should expect courts to use the same objective lens across these provisions.
What makes a threat “credible”: Courts may find credibility from repeated threats to known individuals, knowledge of victims’ locations, claims of surveillance, and context suggesting the defendant can act on threats—even without proof of immediate proximity or concrete logistical steps.
Burden on the defense for § 4C1.1: The defense must affirmatively demonstrate that the offense did not involve credible threats of violence. In practice, this means creating a robust record to counter indicia of credibility (e.g., demonstrating hyperbole, lack of personal connection, absence of location knowledge, or evidence of incapacity to act).
Sentencing practice: The opinion encourages clear Keene statements. District judges should, when in doubt, articulate on the record that the same sentence would be imposed irrespective of guideline disputes, and explain the § 3553(a) reasons. This can preserve sentences on appeal even if guideline rulings are later questioned.
Evidentiary cautions: Washington remains a check on reliance upon unsworn attorney assertions. The panel’s careful alternative holding—finding sufficient evidence without the prosecutor’s “Normandy” proffer—reinforces the need for PSI-based or admitted facts to sustain findings.
Cyber-harassment and online threats: The case underscores that cyber threats can be “credible” notwithstanding distance, especially when the defendant targets known individuals and references specific locations. This is likely to shape sentencing in cyberstalking and online harassment cases.

Complex Concepts Simplified

Credible threat of violence: A threat that a reasonable person would believe might actually be carried out, based on the context (e.g., the speaker’s knowledge of the target, repeated communications, specificity).
U.S.S.G. § 4C1.1 (zero-point offender reduction): A two-level reduction for defendants with no criminal history points if certain conditions are met. One disqualifier is the use of violence or credible threats of violence during the offense.
Objective vs. subjective: “Objective” asks what a reasonable person would think; it does not turn on the particular victim’s subjective feelings or the defendant’s self-serving explanations.
Keene statement: A clear statement by the sentencing judge that the same sentence would be imposed even if a certain guideline issue was resolved differently. This can make any error harmless on appeal.
Substantive reasonableness: On appeal, the court examines whether the sentence falls within a reasonable range in light of the § 3553(a) factors. A below-maximum sentence and strong record-based justifications typically support reasonableness.
PSI (Presentence Investigation Report): A report prepared by probation that lays out offense conduct, history, and guideline calculations. Courts often rely heavily on it at sentencing.
§ 2A6.2(b)(1) “pattern of activity” enhancement: For stalking/harassment offenses, a two-level increase applies if one aggravator is present; four levels if two or more are present (e.g., threatening a dangerous weapon). Here, only the pattern factor was supported, limiting the increase to two levels.

Practice Notes

For defendants seeking § 4C1.1: Be prepared to present evidence showing any threats were not reasonably believable, such as lack of familiarity with victims, generic content, or clear hyperbole devoid of actionable content. Address location knowledge and volume directly.
For the government opposing § 4C1.1 or invoking § 2D1.1(b)(2)/§ 5C1.2(a)(2): Build a record showing objective indicia of credibility—repetition, personal knowledge, specific locations, statements of tracking or surveillance, and any capacity to act.
For district courts: Make explicit Keene statements when guideline disputes exist, and tie the sentence to § 3553(a) factors with concrete record references. Avoid reliance on unsworn attorney assertions unless stipulated; anchor findings in PSI facts or admitted proffers.

Conclusion

United States v. Ovadia supplies a clear, objective definition of “credible threats of violence” for § 4C1.1’s zero-point offender reduction: threats are “credible” if, viewed by a reasonable person in context, they are reasonably believable communications of intent to inflict harm. The panel confirms that physical distance does not defeat credibility where other factors—knowledge of victims, specificity, volume, and obsessive conduct—carry persuasive weight. It also underscores the continuing vitality of Keene harmlessness: a well-articulated, contemporaneous statement that the same sentence would issue irrespective of guideline resolution can preserve the judgment on appeal, provided the sentence is substantively reasonable under § 3553(a).

While unpublished and thus nonbinding, the opinion offers a coherent framework likely to influence how district courts assess credibility of threats across multiple Guidelines contexts, including drug cases (§ 2D1.1(b)(2)) and the safety valve (§ 5C1.2(a)(2)). The key takeaway is practical and doctrinal: credibility is objective, context-driven, and does not hinge on immediate proximity; and careful sentencing records—on both guideline rulings and § 3553(a) analysis—remain decisive on appeal.