United States v. Kevin Loren Daniels

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0002p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

UNITED STATES OF AMERICA,

│

Plaintiff-Appellee, │

> No. 24-3260

│

v. │

│

KEVIN LOREN DANIELS, │

Defendant-Appellant. │

┘

Appeal from the United States District Court for the Southern District of Ohio at Columbus.

No. 2:21-cr-00239-1—Michael H. Watson, District Judge.

Argued: June 11, 2025

Decided and Filed: January 7, 2026

Before: WHITE, LARSEN, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Dennis Belli, Columbus, Ohio, for Appellant. Mary Beth Young, UNITED

STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Dennis Belli,

Columbus, Ohio, for Appellant. Mary Beth Young, Kimberly Robinson, UNITED STATES

ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee.

MURPHY, J., delivered the opinion of the court in which LARSEN, J., concurred.

WHITE, J. (pp. 30–31), delivered a separate opinion concurring in part and dissenting in part.

_________________

OPINION

_________________

MURPHY, Circuit Judge. After Kevin Daniels committed an armed robbery, a jury

convicted him of robbery and firearm offenses. The district court sentenced him to 181 months’

No. 24-3260 United States v. Daniels Page 2

imprisonment. Daniels now raises eight issues on appeal. He claims that his convictions rest on

constitutional, evidentiary, and instructional errors. And he claims that his sentence rests on

mistaken guidelines calculations. Neither set of claims has merit. We thus affirm.

I.

Stores typically bustle with customers searching for deals on the day after Thanksgiving,

which eventually became known as “Black Friday” as a result. Around 7:40 p.m. on that day

back in 2021, things had quieted down at the T-Mobile store on High Street in Columbus, Ohio.

Two employees were operating the store. When one tried to slip out for a cigarette break, she

heard the door beep that signals a customer’s entry. So she returned to the floor and encountered

a man wearing a black hoodie and blue face mask.

After she greeted the man, he responded with the command to “give [him] all [the]

fucking phones.” Trial Tr., R.116, PageID 727. He “pulled out a gun,” pointed it at the two

employees, and forced them into the backroom. Id. When they got there, the robber ordered one

of the employees to remove phones out of the phone safe and to place them in bags that he

provided. In the meantime, he ordered the other employee to empty the money safe. The portion

of this safe that employees can open contained only $500. The robber became “very angry”

when he learned that only armed truck drivers can open the part of the safe with more money.

Id., PageID 731. The employee “feared for” her safety at this point because he got “scary.” Id.,

PageID 738. The robber next turned to a second phone safe and asked the employees to open it.

But this safe had a “ten-minute delay” before it would open. Id., PageID 727. The robber

refused to wait that long. Instead, he sprayed mace in both employees’ faces. He then fled out

the back door. Once the employees recovered from the macing, they called 911.

Unbeknownst to the robber, an employee had placed a “bait phone” in one of the bags of

stolen phones. Id., PageID 729. This phone contained a GPS tracker that activated the moment

the employee removed it from the safe. It alerted a third-party tracking company, and the

company transmitted the bait phone’s GPS coordinates to the Columbus Police Department.

Dispatch quickly alerted nearby police officers of the robbery and sent “updated pings” showing

the bait phone’s evolving location. Id., PageID 763.

No. 24-3260 United States v. Daniels Page 3

A police helicopter soon located the vehicle with the bait phone and put a spotlight on it.

Officers on the ground identified this vehicle and tried to pull it over. But the driver “took off at

[a] high rate of speed” away from them. Id., PageID 766. The helicopter continued to monitor

the vehicle as it raced through the streets. Officers on the ground tried a “pit maneuver” to get

the driver to spin out, but it did not work. Id., PageID 767–68. They then followed the vehicle

into an alley. While there, the driver slowed down and jumped out of the moving vehicle. The

officers chased him on foot and arrested him in the backyard of a nearby home. At this time, the

driver asked the officers how they had managed to catch him so fast and opined that there must

have been transmitters in the bags. He also identified himself as “Kevin Daniels.” Id., PageID

782.

The officers arrested Daniels and took him to the police station. He waived his right to

remain silent and spoke to them there. Daniels eventually made statements suggesting that he

committed the robbery. He claimed, for example, that he robbed the store because he needed the

money to pay bills. And he suggested that the officers had “caught” him “red-handed.” Trial

Tr., R.118, PageID 1039.

Officers also impounded Daniels’s vehicle and obtained a warrant to search it. They

recovered (among other things) a loaded handgun, mace, bags filled with the phones stolen from

the store, cash in an amount stolen from the store, a black hooded sweatshirt, and a blue mask.

The government obtained a three-count indictment against Daniels. It charged him with

affecting interstate commerce through a robbery (or “Hobbs Act robbery”). See 18 U.S.C.

§ 1951(a). It charged him with brandishing a firearm during a crime of violence. See id.

§ 924(c)(1)(A)(ii). And it charged him with illegally possessing that firearm as a felon. See id.

§ 922(g)(1).

Daniels stood trial. The jury convicted him on all counts. For the robbery and felon-in-

possession convictions, the district court calculated Daniels’s guidelines range as 78 to 97

months’ imprisonment. It sentenced him to 97 months’ imprisonment on these counts. The

court next found that the count for brandishing a firearm during a crime of violence triggered a

No. 24-3260 United States v. Daniels Page 4

mandatory-minimum 7-year sentence. The court chose that minimum. It thus sentenced Daniels

to a total of 181 months.

II. Challenges to Convictions

Daniels raises two constitutional challenges, one evidentiary challenge, and one

instructional challenge to his convictions. None of these challenges has merit.

A. Miranda Waiver

Daniels first moved to suppress his statements at the police station on the ground that he

did not knowingly waive his right to remain silent. The district court rightly rejected this motion.

1.

We start with the facts. Officers placed Daniels in an interrogation room around 10:20

p.m. on the night of the robbery. While sitting alone in this room, Daniels sneezed several times.

An officer entered to ask if he was sick. He responded no and added that he had ingested

cocaine earlier. Two detectives then entered to interrogate him.

At first, the detectives discussed Daniels’s rights under Miranda v. Arizona, 384 U.S. 436

(1966). They gave him a form with these rights written on it and asked if he had seen such a

form before. Daniels replied that he knew “the whole process” and that he could “understand”

the form. Video Ex. at 12:02–:05, 12:28. After questioning about his recent drug use, he noted

that he had taken about “half a gram” of cocaine. Id. at 12:39–:44. But he answered “no” when

asked if he might have a “medical episode” or the like. Id. at 12:50–:54. At this point, a

detective read Daniels his rights while Daniels looked over the form. Daniels then read a

sentence out loud: “I have read the statement of my rights as written above. I understand my

rights.” Id. at 13:35–:43. But he refused to sign the form because “it’s all on camera” anyway.

Id. at 13:52–14:01.

The detectives went on to question Daniels about the robbery. When asked why he

committed the crime, he said he had “some bills” to pay. Id. at 14:30–:50. And when asked why

he maced the women, he said he was “just trying to think how [he] can maybe get away.” Id. at

16:40–:50. He further noted that he had been “scared” and “had to do drugs just to calm

No. 24-3260 United States v. Daniels Page 5

down[.]” Id. at 16:54–:59. In response to a detective’s suggestion that they wanted to know the

details, he opined that he was “on drugs” and “down on [his] luck.” Id. at 17:40–:45.

The detectives later switched to questioning Daniels about whether he had committed

nine similar robberies in which the robber maced the victims. Daniels responded that he was not

pictured in the photo of a suspect who had committed one of these robberies. He also conveyed

that he had not robbed anyone in a long time before that night and that he was “fucked up, man.”

Id. at 20:33–:39. After asking one of the detectives to leave, he told the other one “don’t do this

to me” and reiterated that he had not committed the other robberies. Id. at 23:28–:45. He added:

“You know what I did tonight” because it was “on camera” so he did not have to explain it. Id.

at 25:22–:33. Daniels also suggested that they should not charge him with the other robberies

because it took him substantial courage to commit this one. He claimed that he had been praying

about it and that he was “so fucked up right now trying to help [his] goddamn family.” Id. at

26:52–27:03. Eventually, he told the remaining detective that he was “done” answering

questions. Id. at 27:32–:33. This detective immediately ended the interrogation.

Before trial, Daniels moved to suppress his statements during this interrogation. He

argued that he did not knowingly waive his Miranda rights because he was high on cocaine. At

a hearing, one of the detectives testified that Daniels had shown no signs of impairment, such as

a “slurring of his speech” or “glassy eyes.” Suppression Tr., R.114, PageID 590–91. The district

court agreed. It found that the detectives had no “reason” to believe that Daniels was intoxicated

because he “acted perfectly normal,” “did not slur his speech,” and did not “display any

problems with balance.” Order, R.50, PageID 132–33. Daniels also “answered all of the

questions coherently, cogently, and concisely.” Id., PageID 133. The court thus denied this

motion.

2.

The Fifth Amendment bars the federal government from “compell[ing]” “any person” “in

any criminal case to be a witness against himself[.]” U.S. Const. amend. V. In Miranda, the

Court sought to protect this right by adopting “judicial rules of the road” that police officers must

follow during custodial interrogations of criminal suspects. United States v. Potter, 927 F.3d

No. 24-3260 United States v. Daniels Page 6

446, 449 (6th Cir. 2019); see Miranda, 384 U.S. at 478–79. These rules require officers to

inform suspects of several things, including their right to remain silent and to have an attorney.

See Moran v. Burbine, 475 U.S. 412, 420 (1986). And the rules require suspects to knowingly

and voluntarily waive these rights. See Maryland v. Shatzer, 559 U.S. 98, 104 (2010). If officers

obtain incriminating statements from a suspect while violating these rules, courts must exclude

the statements from any later criminal trial. See Vega v. Tekoh, 597 U.S. 134, 141–42 (2022).

This case involves the rules for a valid waiver of the rights that Miranda requires officers

to disclose (the right to remain silent and to counsel). The Supreme Court evaluates a suspect’s

waiver across “two distinct dimensions.” Moran, 475 U.S. at 421. To start, suspects must

“voluntarily” waive the rights. Id. (citation omitted). This requirement ensures that officers do

not coerce a waiver out of suspects or deceive them to obtain it. Id.; see United States v. Mahan,

190 F.3d 416, 422–23 (6th Cir. 1999). Next, suspects must “knowingly” waive the rights.

Moran, 475 U.S. at 421 (quoting Miranda, 384 U.S. at 444). This requirement ensures that

suspects know of both the “nature” of the abandoned rights and the “consequences” of waiving

them. Id. Yet suspects need not understand “every possible consequence” of speaking to the

police. Garner v. Mitchell, 557 F.3d 257, 261 (6th Cir. 2009) (en banc) (quoting Colorado v.

Spring, 479 U.S. 564, 574 (1987)). They must know just the basics: that they have the right not

to talk to the police, to talk only with counsel present, and to discontinue talking at any time. See

Spring, 479 U.S. at 574. And they must know of the main consequence of speaking: that the

police may use their statements against them. See id.; United States v. Crumpton, 824 F.3d 593,

607–08 (6th Cir. 2016).

The Supreme Court has established several other subsidiary ground rules for establishing

whether a suspect’s waiver passes muster. Suspects need not expressly waive their Miranda

rights (whether orally or in writing). See Berghuis v. Thompkins, 560 U.S. 370, 383–84 (2010).

Rather, they can impliedly waive the rights by, for example, speaking with the officers after the

officers have made the required disclosures. See id. at 383–85. The Court also requires us to

consider the “totality of the circumstances” to decide whether a suspect knowingly and

voluntarily gave up the right to remain silent and to have an attorney. Fare v. Michael C., 442

No. 24-3260 United States v. Daniels Page 7

U.S. 707, 725 (1979); see Arizona v. Fulminante, 499 U.S. 279, 285–89 (1991). And the

government bears the burden to show these two elements. See Berghuis, 560 U.S. at 384.

When reviewing a district court’s conclusion that suspects knowingly and voluntarily

waived their Miranda rights, we must defer to that court’s factual findings and can overturn them

only if the court committed clear error. See United States v. Williams, 998 F.3d 716, 737 (6th

Cir. 2021). Yet we review the district court’s legal analysis about the requirements for a valid

waiver de novo. See id. How about the mixed (or ultimate) question whether a suspect entered a

knowing and voluntary waiver under the totality of the historical facts found by the district

court? We must review the ultimate voluntariness finding de novo. See Beckwith v. United

States, 425 U.S. 341, 347–48 (1976); United States v. Rigsby, 943 F.2d 631, 635 (6th Cir. 1991).

Some courts, on the other hand, review the ultimate knowing question for clear error. See United

States v. Price, 980 F.3d 1211, 1226 (9th Cir. 2019). The parties point us to none of our own

caselaw on this topic. So we will save it for another day because Daniels’s claim fails under any

standard of review.

Daniels entered a knowing and voluntary waiver. As for the voluntary nature of the

waiver, no evidence suggests that the detectives tried to coerce or deceive him to obtain it. See

Berghuis, 560 U.S. at 382‒83. To the contrary, they calmly read him his rights and clarified that

he could remain silent and end the questioning at any time. Video Ex. at 13:00–:30. Daniels

thus identifies no “police coercion” of any kind. Mahan, 190 F.3d at 422. As for the knowing

nature of the waiver, Daniels told the detectives that he understood “the whole process” when

they handed him a form listing his rights. Video Ex. at 12:00–:07. He then looked over the form

(which he also said he understood) while a detective explained his rights to him. And he read

aloud from the form, acknowledging that he had “read the statement of [his] rights” and

understood it. Id. at 13:35–:43. The detectives also told him about the consequences of the

waiver: “anything [that he said could] be used against [him] in court.” Id. at 13:08–:10. And his

ultimate decision to end the conversation further confirmed that he knew he could stop talking at

any time. Id. at 27:32–:34.

Daniels’s two counterarguments fail to persuade us otherwise. First, he notes that he had

ingested cocaine before the robbery and interrogation. We have “frequently” confronted claims

No. 24-3260 United States v. Daniels Page 8

that intoxicated suspects did not knowingly waive their Miranda rights. United States v.

Montgomery, 621 F.3d 568, 573 (6th Cir. 2010). And we treat a suspect’s prior drug or alcohol

use as one factor in the totality of the circumstances. United States v. Washington, 2022 WL

1224553, at *3 (6th Cir. Apr. 26, 2022) (citing Montgomery, 621 F.3d at 572–73). So when

suspects appear “alert, coherent, and lucid” despite their prior use of an intoxicating substance,

we have regularly upheld a finding that they made a knowing waiver. Id.; see United States v.

Hayek, 2024 WL 2028048, at *3 (6th Cir. May 7, 2024); United States v. Davis, 683 F. App’x

480, 484 (6th Cir. 2017); United States v. Hampton, 572 F. App’x 430, 434–35 (6th Cir. 2014);

Montgomery, 621 F.3d at 574; United States v. Dunn, 269 F. App’x 567, 572–73 (6th Cir. 2008).

This case requires the same result. Although Daniels stated that he had used cocaine, he told the

detectives that he was not experiencing any type of episode from it. And, as the district court

found, he showed no signs of impairment that might suggest he lacked the required

understanding of what he was waiving. Rather, he “acted perfectly normal” and “answered all of

the questions coherently, cogently, and concisely.” Order, R.50, PageID 132–33.

Daniels responds that the detectives should have known that he was intoxicated because

he twice told them that he was “fucked up” during the interrogation. Video Ex. at 20:36–:37,

26:59–27:00. But the officers understood him to be talking about the circumstances in which he

found himself (caught red-handed committing an armed robbery) rather than his mental acuity.

Supp. Tr., R.114, PageID 595. And the district court credited the detectives’ understanding.

Order, R.50, PageID 134. We must accept its “credibility determination” under our deferential

standard of review for factual findings. Dunn, 269 F. App’x at 573. These statements thus do

nothing to undermine the conclusion that Daniels’s prior cocaine use did not affect his waiver.

Second, Daniels notes that he refused to sign the rights-waiver form. As the Supreme

Court made clear in Berghuis, however, suspects can validly waive their rights even when they

“decline[] to sign” such a form. 560 U.S. at 375, 384–85; see United States v. Lawrence, 735

F.3d 385, 437–38 (6th Cir. 2013). In that case, the suspect engaged in a “course of conduct

indicating waiver” by answering the officers’ questions after receiving the Miranda warnings.

Berghuis, 560 U.S. at 386 (citation omitted). Daniels followed the same course of conduct. If

anything, this case is easier. The record in Berghuis contained conflicting evidence over whether

No. 24-3260 United States v. Daniels Page 9

the suspect had verbally stated that he understood his rights. Id. at 375. All agree, by contrast,

that Daniels conveyed this understanding to the detectives. And when he refused to sign the

form, he explained that they had recorded “on camera” his statements indicating that he

understood his rights. Video Ex. at 13:57–:59. All told, the totality of the circumstances—

including Daniels’s verbal waiver, demeanor, and rapport—establishes that he knowingly and

intelligently waived his Miranda rights.

B. Right to Counsel

Daniels next argues that the district court violated the Sixth Amendment by denying his

request for new counsel. This second constitutional claim fares no better.

We again start with the facts. A week or so before trial, Daniels sent the district court a

handwritten letter requesting a new attorney. He complained that his existing lawyer did not

“review” certain “documents” with him and that he had trouble contacting this lawyer. Letter,

R.58, PageID 196. He also stated that he asked his lawyer to challenge certain evidence, and his

lawyer had not complied. Id. The district court brought up the letter at the final pretrial

conference. The court went over the identified documents (a sealed version of the indictment

and a case information sheet). Daniels then suggested that he had asked his attorney to obtain

DNA testing for the firearm recovered from his vehicle after the high-speed chase, but his

attorney “shrugged it off” and declined the request. Pretrial Tr., R.121, PageID 1162. The court

asked the government about the DNA testing. It responded that it had not tested the gun because

it had overwhelming evidence of Daniels’s guilt. And although Daniels then suggested that he

and his attorney had suffered a “breakdown in communication,” the court refused to appoint new

counsel. Id., PageID 1163. It had granted Daniels a new attorney once before and assured him

that he had “competent counsel” (a former U.S. Attorney) representing him. Id., PageID 1164.

The district court thus saw no “legitimate reason” for a last-minute change. Id. We review this

decision for an abuse of discretion. See United States v. Vasquez, 560 F.3d 461, 466 (6th Cir.

2009).

We see no such abuse. The Sixth Amendment gives “the accused” in “all criminal

prosecutions” “the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.

No. 24-3260 United States v. Daniels Page 10

amend. VI. The Supreme Court has interpreted this right to require courts to appoint a lawyer

for defendants who cannot afford to pay for their own counsel. Gideon v. Wainwright, 372 U.S.

335, 339–40 (1963). But a defendant’s right to publicly appointed counsel differs from the

defendant’s right to privately retained counsel. See United States v. Gonzalez-Lopez, 548 U.S.

140, 151–52 (2006). Indigent defendants who obtain appointed counsel have no right to choose

any specific attorney. See United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990).

Nevertheless, the statute authorizing the appointment of counsel permits a court to substitute one

attorney for another when “the interests of justice” support the substitution. 18 U.S.C.

§ 3006A(c); see Martel v. Clair, 565 U.S. 648, 658 (2012). So we have held that defendants

must show “good cause” when they seek a new attorney. Iles, 906 F.2d at 1130.

When a defendant complains about appointed counsel, a district court should inquire into

the reasons for the defendant’s concerns to determine if this good cause exists. Vasquez, 560

F.3d at 466. On appeal, we ask four questions to decide whether a district court reasonably

found that a defendant lacked good cause. See United States v. Wells, 55 F.4th 1086, 1090–91

(6th Cir. 2022); United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996). First: Did the

defendant timely seek a new attorney? See United States v. Trevino, 7 F.4th 414, 428 (6th Cir.

2021). Second: Did the district court adequately investigate the issue? See id. Third: How

severe was the attorney-client conflict? See id. And fourth: How would a change affect the

public interest? See id.

The district court’s denial of Daniels’s request reasonably balanced these four factors.

For starters, Daniels did not act promptly. We regularly uphold the denial of a request for a new

attorney when that request comes shortly before trial. See id. at 429 (collecting cases). Here,

Daniels sent his request just ten days before trial, and the district court did not receive it until

five days before. Because the request would have required the court to continue the trial, we

must give “extraordinary deference” to its refusal to do so. Vasquez, 560 F.3d at 467 (citation

omitted); see United States v. Sharp, 2023 WL 3966739, at *6 (6th Cir. June 13, 2023). Daniels

also failed to explain why he did not seek a new lawyer earlier. By the time of his request, his

attorney had represented him for ten months. And Daniels objected to his attorney’s failure to

obtain certain documents (the sealed indictment and case information sheet) that had been on the

No. 24-3260 United States v. Daniels Page 11

docket since the case’s start. See United States v. Chambers, 441 F.3d 438, 447 (6th Cir. 2006).

Similarly, counsel’s failure to seek the DNA evidence would have been obvious throughout the

case. See Martel, 565 U.S. at 665. Yet Daniels offers no reason for the delay.

Next, the district court conducted a sufficient, if limited, investigation into Daniels’s

motion. We require a district court to give the defendant a chance “to explain the attorney-client

conflict as he perceives it.” United States v. Marrero, 651 F.3d 453, 465 (6th Cir. 2011). When

the district court has failed to do so, then, we have sometimes remanded to allow the defendants

to explain their reasons. See United States v. Jennings, 945 F.2d 129, 132 (6th Cir. 1991),

opinion clarified, 966 F.2d 184 (6th Cir. 1992). At the final pretrial conference here, the district

court allowed Daniels to list all his concerns with his lawyer. The court also explained why the

documents mentioned in his letter did not affect his case. The court thus sought “to ease

[Daniels’s] distrust” with his counsel’s failure to turn over the allegedly secret documents. Iles,

906 F.2d at 1131. It next allowed Daniels to air a new concern: that his attorney did not seek

DNA testing. And it allowed him to discuss their alleged lack of communication. The court

perhaps should have asked follow-up questions when Daniels suggested that he and his lawyer

had suffered a breakdown in communication. But given the other factors, and especially the

timing of Daniels’s request, that alone does not qualify as reversible error. See United States v.

Zamora, 2025 WL 3476178, at *6–7 (6th Cir. Dec. 3, 2025).

The court also reasonably concluded that the conflict between Daniels and his attorney

was not so severe as to warrant a substitution of counsel. We are more likely to require attorney

substitution when a “total lack of communication” will prevent the defendant from raising “an

adequate defense[.]” United States v. Mack, 258 F.3d 548, 556 (6th Cir. 2001). This type of

breakdown did not occur here. Although Daniels told the district court that their communication

had stopped, the transcript paints a different picture. Among other things, defense counsel knew

the documents that Daniels wanted to see—showing that they had communicated. Daniels’s

attorney also mentioned that they planned to speak later that week about the trial. Nor did any

lack of communication undermine counsel’s ability to assert an “adequate defense” at trial. Id.

To the contrary, counsel presented a viable defense (by suggesting that someone else might have

robbed the store and given Daniels the loot) despite the overwhelming evidence against Daniels.

No. 24-3260 United States v. Daniels Page 12

Lastly, the public interest did not support any substitution. See Wells, 55 F.4th at 1092.

The substitution would have delayed the trial (and justice for Daniels’s victims) because new

counsel would have needed more time to prepare. See Trevino, 7 F.4th at 429. And Daniels had

replaced his counsel before. See Wells, 55 F.4th at 1092. He also sought a new attorney based

on some “frivolous” concerns—such as the need to see a case information sheet. Sharp, 2023

WL 3966739, at *6 (quoting United States v. Saldivar-Trujillo, 380 F.3d 274, 278 (6th Cir.

2004)).

In response, Daniels disputes only one of these factors: the adequacy of the district

court’s investigation. He complains that the court did not ask defense counsel about his strategy

for declining to get DNA testing. But this argument requires more of district courts than our

cases demand. Courts need only give defendants an opportunity to place their concerns on the

record. See Marrero, 651 F.3d at 465. If we required more (such as an investigation into

defense counsel’s trial strategy), we would risk “intruding into privileged communications.”

Iles, 906 F.2d at 1131. Because the court gave Daniels an adequate opportunity to air his

concerns, it did not abuse its discretion in the way that it processed his request for new counsel.

C. GPS Coordinates

Daniels next argues that the district court should have suppressed certain testimony

because the government committed a discovery violation. This third claim fails too.

The claim requires us to start with Daniels’s defense strategy. In an opening statement,

defense counsel suggested that Daniels might not have robbed the T-Mobile store and instead

might have obtained the stolen phones and money later. Why? Recall that a T-Mobile employee

gave the robber a bait phone to track his getaway. Counsel pointed out that this phone showed

the robber stopped at a certain street corner for “at least one minute.” Trial Tr., R.116, PageID

721. And he raised questions about this stop: “Was the car switched? Was there a meet-up?”

Id. In other words, counsel sought to create reasonable doubt based on the theory that Daniels

might have received the stolen items from the robber during an exchange at this time.

In response, a detective testified about the latitude-longitude coordinates of the bait

phone during this one-minute delay. He opined that the location data from the phone was “very

No. 24-3260 United States v. Daniels Page 13

precise.” Trial Tr., R.118, PageID 1000. He had inputted the phone’s latitude-longitude

coordinates into Google Maps. And at the identified time, the phone showed the car in the “left-

hand turn lane” likely stopped at a red light. Id.

Daniels’s counsel objected. He argued that the detective had turned into an unauthorized

“expert” witness under Federal Rule of Evidence 702 by opining on the precise location of the

latitude-longitude coordinates using Google Maps. Id., PageID 998. Counsel added that the

government had not disclosed that the detective would testify as an expert or that he had engaged

in this Google Maps search. The district court overruled this objection. But it did give the

defense an option to take a continuance to test the coordinates in Google.

Daniels now raises a slightly different argument. He suggests that the government

violated Federal Rule of Criminal Procedure 16(a)(1)(F) because it did not disclose the “results”

of a “scientific test or experiment” (the Google Maps search). Appellant Br. at 13, 29 (quoting

Fed. R. Crim. P. 16(a)(1)(F)). And he claims that the district court should have suppressed the

detective’s testimony because of this discovery violation. We typically review a district court’s

decision about pretrial discovery for an abuse of discretion. See United States v. Sanders, 106

F.4th 455, 472–73 (6th Cir. 2024) (en banc); United States v. Jordan, 544 F.3d 656, 667 (6th Cir.

2008). But the government points out that Daniels did not raise this Rule 16 claim in the district

court. His counsel instead objected on the ground that the detective qualified as an improper

expert under Federal Rule of Evidence 702. According to the government, Daniels forfeited his

Rule 16 theory by failing to raise it with “enough specificity” in the district court. United States

v. Holt, 116 F.4th 599, 612 (6th Cir. 2024); see United States v. Lester, 98 F.4th 768, 777 n.6

(6th Cir. 2024). It thus asks us to apply the deferential plain-error standard of review to this

theory. See Holt, 116 F.4th at 613. We need not take sides in this debate because Daniels’s

claim fails under either standard.

Rule 16 provides that “[u]pon a defendant’s request, the government must permit a

defendant to inspect and to copy or photograph the results or reports . . . of any scientific test or

experiment” if the defendant satisfies three factors. Fed. R. Crim. P. 16(a)(1)(F). The requested

item must be “within the government’s possession, custody, or control[.]” Fed. R. Crim. P.

16(a)(1)(F)(i). The government’s attorney must have known (or should have known through

No. 24-3260 United States v. Daniels Page 14

“due diligence”) “that the item exists[.]” Fed. R. Crim. P. 16(a)(1)(F)(ii). And the item must be

“material” to the defense, or the government must plan “to use the item in its case-in-chief at

trial.” Fed. R. Crim. P. 16(a)(1)(F)(iii).

Daniels’s claim raises several questions on the merits. To start, the government’s

discovery obligations get “triggered” only if the defendant makes a “request” for the relevant

items. United States v. Dossey, 66 F. App’x 528, 531 (6th Cir. 2003); Fed. R. Crim. P.

16(a)(1)(F). Yet Daniels points to no place in the record showing that he made such a request.

See Dossey, 66 F. App’x at 531. Next, the rule applies only to “the results or reports” of a

“scientific test or experiment” (such as a fingerprint test). Fed. R. Crim. P. 16(a)(1)(F); see

United States v. Garrison, 839 F. App’x 968, 980 (6th Cir. 2020). Yet Daniels cites no case to

support his claim that an entry of latitude and longitude coordinates into Google Maps qualifies

as the type of “scientific test or experiment” that falls within this text. Cf. Dossey, 66 F. App’x

at 531.

But we need not resolve these questions. Even if the government violated Rule 16,

Daniels has not shown that the district court abused its discretion by refusing to suppress the

detective’s testimony. Rule 16 gives district courts “considerable” leeway in choosing a remedy

for a violation of its requirements. United States v. Maples, 60 F.3d 244, 246 (6th Cir. 1995). A

district court may order belated discovery, “grant a continuance,” suppress the evidence, or

impose any other “just” remedy. Fed. R. Crim. P. 16(d)(2). We have described the most severe

of these remedies (suppression) as “undesirable” and reserved for cases of “incurable prejudice”

or “bad faith” on the part of the prosecution. Maples, 60 F.3d at 247.

Here, the district court chose an alternative remedy to suppression: allowing a potential

“continuance.” Trial Tr., R.118, PageID 1019. The court reasonably did so. For one thing, it

saw no “bad faith” on the government’s part. Maples, 60 F.3d at 247. To the contrary, the

prosecution simply did not believe that Rule 16(a)(1)(F) applied to this Google Maps search. For

another thing, Daniels identifies no “incurable prejudice” from the non-disclosure. Id. The

district court’s “continuance” option gave defense counsel a chance to verify the information in

Google Maps or seek a third party to do so. And counsel opted against a continuance because he

could perform this task during a break. He also did not think the coordinates came back with an

No. 24-3260 United States v. Daniels Page 15

“exact” location. Trial Tr., R.118, PageID 1024. Although Daniels rightly notes that counsel

could not testify about his own results in inputting the coordinates into Google Maps, counsel got

the detective to concede on cross-examination that the coordinates slightly changed during the

one-minute stop. Id., PageID 1045–47. Besides, the continuance would have allowed counsel to

find a third party to testify, but counsel expressed no desire for this course of action. Nor does

Daniels identify any other information that the defense might have obtained if the prosecution

had turned over the Google Map search results earlier. In sum, the district court reasonably

refused to suppress the challenged evidence because Daniels showed neither bad faith nor

prejudice.

D. Hobbs Act Instructions

This conclusion leaves Daniels’s final challenge to his convictions: that the district

court’s instructions misinformed the jury about the Hobbs Act. A defendant violates the Hobbs

Act if the defendant “obstructs, delays, or affects commerce” through the “robbery or extortion”

of another person. 18 U.S.C. § 1951(a). When explaining this law’s “commerce” element, the

district court told the jury that it need not find “an actual effect on interstate commerce.”

Instructions, R.63, PageID 224. Daniels asserts that this instruction conflated a completed

Hobbs Act robbery (which allegedly does require such an effect) with an attempted Hobbs Act

robbery (which does not).

But his argument faces a significant obstacle at the outset: Daniels failed to object to the

instruction in the district court. He thus must meet the demanding plain-error test. See Fed. R.

Crim. P. 30(d); United States v. Howard, 947 F.3d 936, 945 (6th Cir. 2020). We have repeatedly

suggested that this test in the instructional context requires a challenger to show that the jury

charge, taken as a whole, was “so clearly erroneous as to likely produce a grave miscarriage of

justice.” United States v. Robinson, 133 F.4th 712, 721 (6th Cir. 2025) (citation omitted). Our

prior cases have assumed that this language tracks the more common four-part test for plain error

that the Supreme Court later adopted in United States v. Olano, 507 U.S. 725 (1993). See

Robinson, 133 F.4th at 721–22. We may follow this assumption here too. And under Olano, a

defendant cannot show that jury instructions contained a plain error “unless the claimed mistake

‘[was] clear under current law.’” Id. at 722 (quoting Olano, 507 U.S. at 734).

No. 24-3260 United States v. Daniels Page 16

This deferential standard dooms Daniels’s claim. He cannot show an obvious error under

our existing cases interpreting the Hobbs Act. That Act requires the government to prove that

Daniels’s “robbery” “affect[ed] commerce” in some way. 18 U.S.C. § 1951(a). It also defines

“commerce” to include not just interstate commerce but also “all other commerce over which the

United States has jurisdiction.” Id. § 1951(b)(3). The Supreme Court has held that this

“unmistakably broad” definition extends the Hobbs Act to reach all conduct that Congress may

constitutionally regulate under its commerce power. Taylor v. United States, 579 U.S. 301, 305

(2016). That power gives Congress the ability to regulate intrastate economic activity (such as

the sale of illegal drugs) if that activity “substantially affect[s] interstate commerce in the

aggregate.” Id. at 306 (emphasis added); see also Gonzales v. Raich, 545 U.S. 1, 22 (2005). So

Congress may regulate an individual occurrence of this general economic activity (such as a

single intrastate drug sale) even if this occurrence’s “individual impact on interstate commerce is

minimal.” Taylor, 579 U.S. at 306; see United States v. Sanders, 2021 WL 4787226, at *3 (6th

Cir. Oct. 14, 2021).

Applying the Supreme Court’s broad reading, we have repeatedly stated that the Hobbs

Act requires the government to prove only a “de minimis connection with interstate commerce”

when a defendant robs a business establishment (as compared to an individual). United States v.

Watkins, 509 F.3d 277, 280 (6th Cir. 2007); see Sanders, 2021 WL 4787226, at *3. We have

added that the Act does not require the government to prove that such a business robbery had “an

actual effect on interstate commerce[.]” United States v. Peete, 919 F.2d 1168, 1174 (6th Cir.

1990); see United States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016); Watkins, 509 F.3d at

281; United States v. Wang, 222 F.3d 234, 237 (6th Cir. 2000). Rather, the government need

only establish a “realistic probability” that this type of robbery would have this effect. Wang,

222 F.3d at 237 (citation omitted). This probability exists when, for example, the business

regularly purchased out-of-state goods and the robbery might affect these purchases. See id.; see

also Sanders, 2021 WL 4787226, at *3 (collecting examples).

Evaluated against this caselaw, the district court did not commit an obvious error. See

Olano, 507 U.S. at 734. When discussing the commerce element, its instructions suggested that

“[a]ny effect at all on commerce is enough.” Instructions, R.63, PageID 224. They then

No. 24-3260 United States v. Daniels Page 17

clarified that a robbery could satisfy this element if a robber “obtain[ed] money that belonged to

a business which customarily purchased goods from outside the State of Ohio . . . if [the

robber’s] conduct made that money unavailable to the business for the purchase of goods or the

conducting of business.” Id. The court lastly gave the challenged instruction: “It is not

necessary for you to find that there was an actual effect on interstate commerce.” Id. Our cases

say almost the same thing word for word. As one decision noted, the government does not need

“to prove that a Hobbs Act robbery had an actual effect on interstate commerce, but only that

there was a ‘realistic probability’ of such an effect.” Watkins, 509 F.3d at 281 (quoting Peete,

919 F.2d at 1174).

Daniels responds by pointing to the commentary in our pattern jury instructions. This

commentary suggests that, unlike an attempted Hobbs Act robbery, a completed Hobbs Act

robbery “requires an actual effect on interstate commerce.” Sixth Cir. Pattern Jury Instruction

17.03 cmt. (May 1, 2025) (citing United States v. DiCarlantonio, 870 F.2d 1058, 1061 (6th Cir.

1989)). In the decision that this commentary cites (DiCarlantonio), we held that an extortion

defendant’s conduct did not violate the Hobbs Act because the defendant had received FBI-

supplied bribe money from the extorted business. See 870 F.2d at 1059–61. We held that the

government could not rely on this money for the commerce element because it did not belong to

a business engaged in commerce. See id. When reaching this conclusion, we opined that “a

substantive Hobbs Act violation requires an actual effect on interstate commerce[.]” Id. at 1061.

We added, by contrast, that the receipt of this money could prove that the defendant committed

an inchoate crime like attempt or conspiracy. See id.; see also Peete, 919 F.2d at 1175.

True, Daniels identifies an inconsistency in our cases: DiCarlantonio suggested that the

Hobbs Act “requires an actual effect,” 870 F.2d at 1061, while others have said that the Act

“does not require . . . an actual effect,” Watkins, 509 F.3d at 281. But the district court

reasonably sided with our latter decisions. Among other reasons, the Supreme Court has

explained after DiCarlantonio that the government need not prove “that the defendant’s conduct

in and of itself affected . . . commerce” if the “category of conduct” in the aggregate does.

Taylor, 579 U.S. at 309 (emphasis added). And unlike the extortion in DiCarlantonio (which

took government funds), the robbery in this case took an interstate business’s money and goods.

No. 24-3260 United States v. Daniels Page 18

Ultimately, though, we need not reconcile this inconsistency. The inconsistency itself forecloses

Daniels’s claim on plain-error review. See Olano, 507 U.S. at 734.

Daniels fares no better with his related argument that the jury instructions had the effect

of constructively amending his indictment. He points out that the indictment charged him with a

completed Hobbs Act robbery (that affected commerce), but the instructions suggested that the

jury could find him guilty of an attempt offense (that did not affect commerce). He is right that a

constructive amendment can occur if jury instructions charge a different crime than the one

alleged in the indictment. See United States v. Davis, 970 F.3d 650, 659 (6th Cir. 2020). But he

is wrong that the instructions did so here (at least under plain-error review). As we have

explained, at least some of our cases have not required proof that a completed offense actually

affected interstate commerce. Under that broad view, the instructions properly charged the

substantive Hobbs Act offense and there was no plain error.

III. Sentencing Challenges

Daniels next challenges his sentence. He argues that the district court issued a

“procedurally unreasonable sentence” because it miscalculated his guidelines range in four ways.

United States v. Riccardi, 989 F.3d 476, 481 (6th Cir. 2021). But his reasons all lack merit.

A. Physical-Restraint Enhancement

Daniels first argues that the district court should not have applied a physical-restraint

enhancement. The then-applicable robbery guideline told district courts to increase a

defendant’s offense level by two “if any person was physically restrained to facilitate

commission of the offense or to facilitate escape[.]” U.S.S.G. § 2B3.1(b)(4)(B) (2024). This

guideline’s commentary (which both parties accept) defined “physically restrained” as “the

forcible restraint of the victim such as by being tied, bound, or locked up.” Id. § 1B1.1 cmt.

n.1(L); see id. § 2B3.1 cmt. n.1. Applying this definition, we have repeatedly held that a

defendant physically restrains victims if the defendant points a gun at them and orders them “to

move from one location to another.” United States v. Coleman, 664 F.3d 1047, 1049–51 (6th

Cir. 2012); see United States v. McCormick, 2024 WL 4881041, at *2–3 (6th Cir. Nov. 25,

2024); United States v. Howell, 17 F.4th 673, 692 (6th Cir. 2021); United States v. Montgomery,

No. 24-3260 United States v. Daniels Page 19

748 F. App’x 668, 672 (6th Cir. 2018); United States v. Perry, 743 F. App’x 617, 619 (6th Cir.

2018); United States v. Smith-Hodges, 527 F. App’x 354, 356 (6th Cir. 2013). In Coleman, for

example, we applied this enhancement when a robber ordered a bank employee at gunpoint to

walk out of his office and sit on the lobby floor. See 664 F.3d at 1048, 1050.

This precedent triggered the enhancement for Daniels. He entered the T-Mobile store

and pointed a gun at two employees. He then forced them at gunpoint to walk to the backroom

so that he could “get access” to phone and money vaults. Perry, 743 F. App’x at 619. In other

words, Daniels “limit[ed] [the employees’] freedom of movement by brandishing a firearm and

compelling [them] to move from one location to another.” Coleman, 664 F.3d at 1050. He thus

“physically restrained” them under our understanding of that phrase. U.S.S.G. § 2B3.1(b)(4)(B).

In response, Daniels relies on United States v. Ziesel, 38 F.4th 512 (6th Cir. 2022).

There, an unarmed robber told bank tellers to get on the ground without implying that he had a

weapon and while assuring them that nobody would get hurt. Id. at 514. We held that the robber

did not physically restrain these tellers merely by ordering them “to get on the ground” without

more. Id. at 516. Yet Daniels did more. He had a gun. And he forced the employees to walk

from one location to another against their will. So this case resembles Coleman, not Ziesel.

Daniels retorts that the robber in Coleman forced the victims to sit or lie on the floor

while he never forced the T-Mobile employees to get down. Yet Coleman did not turn on this

factual nuance. Rather, it turned on the use of a firearm to force a victim to change locations.

See Coleman, 664 F.3d at 1050. So we have applied the enhancement when the robber forced a

victim “to accompany him to the bank’s vault” without requiring the victim to lie down.

Montgomery, 748 F. App’x at 672; see Perry, 743 F. App’x at 619. This rule covers Daniels’s

conduct.

Daniels also invokes the Second Circuit’s narrower reading of “physically restrained,”

which would not apply this enhancement if armed robbers only forced victims to change

locations. See United States v. Taylor, 961 F.3d 68, 78–79 (2d Cir. 2020). But our published

cases have chosen a “broader” test than the one that the Second Circuit follows. Smith-Hodges,

527 F. App’x at 357; see United States v. Hill, 963 F.3d 528, 535–36 (6th Cir. 2020). In fact,

No. 24-3260 United States v. Daniels Page 20

this circuit conflict has led the Sentencing Commission to adopt a change to § 2B3.1(b)(4)(B)

that follows the Second Circuit’s narrower view and requires “physical contact or confinement”

for the enhancement. U.S.S.G. § 2B3.1(b)(4)(B) (2025); see also U.S. Sentencing Comm’n,

Sentencing Guidelines for United States Courts, 90 Fed. Reg. 19798, 19798–99 (May 9, 2025).

The Commission has not yet determined whether this change will apply retroactively. So

although we may have to change course down the road, we must follow our current precedent

here.

B. Bodily Injury Enhancement

Daniels next argues that the district court should not have applied a bodily injury

enhancement. The robbery guideline tells district courts to increase a defendant’s offense level if

“any victim sustained bodily injury” during a robbery. U.S.S.G. § 2B3.1(b)(3). The size of the

increase depends on the seriousness of the injury. So a court should increase the offense level by

two for a “bodily injury”; by four for a “serious bodily injury”; and by six for a “permanent or

life-threatening bodily injury[.]” Id. § 2B3.1(b)(3)(A)–(C) (citation modified). And if an injury

falls between these three extremes (that is, between a bodily injury and a serious bodily injury or

between a serious bodily injury and a permanent one), the court can increase the offense level by

either three or five. See id. § 2B3.1(b)(3)(D)–(E).

The commentary (which again both parties accept as valid) clarifies that the phrase

“[b]odily injury” covers “any significant injury; e.g., an injury that is painful and obvious, or is

of a type for which medical attention ordinarily would be sought.” Id. § 1B1.1 cmt. n.1(B); see

id. § 2B3.1 cmt. n.1. This reading comports with the ordinary understanding of the phrase: a

“[h]urt or loss” to a person’s “body” or a “bodily wound or sore.” VII Oxford English Dictionary

981 (2d ed. 1989) (defining “injury”); II Oxford English Dictionary, supra, at 353 (defining

“bodily”). By comparison, the commentary defines “serious bodily injury” to cover an “injury

involving extreme physical pain or the protracted impairment of a function of a bodily member,

organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or

physical rehabilitation.” Id. § 1B1.1 cmt. n.1(M); see id. § 2B3.1 cmt. n.1.

No. 24-3260 United States v. Daniels Page 21

A few examples show the harms that we have found qualify as “bodily injury.” In

several cases, victims suffered a bodily injury from the pain caused by a gun strike even though

the strike did not leave bruises or other outward signs of harm. See United States v. Person, 714

F. App’x 547, 551–52 (6th Cir. 2017); United States v. Davenport, 30 F. App’x 338, 339–40 (6th

Cir. 2002) (order); United States v. Jones, 1999 WL 133262, at *3–4 (6th Cir. Feb. 25, 1999)

(per curiam); United States v. Austin, 1996 WL 109500, at *11–12 (6th Cir. Mar. 11, 1996) (per

curiam); cf. United States v. Jackson, 918 F.3d 467, 487 (6th Cir. 2019). In another case, the

victim suffered a bodily injury when she bruised her knees and arms after the defendant grabbed

her and she jumped out of a car. See United States v. Carroll, 1997 WL 588853, at *2 (6th Cir.

Sept. 22, 1997) (per curiam). In still another, the victim suffered a bodily injury when the

defendant’s beating caused abrasions, a hyperextended shoulder, and knee and elbow soreness.

United States v. Muhammad, 948 F.2d 1449, 1456 (6th Cir. 1991); see also United States v.

Faulkner, 1999 WL 717960, at *2–3 (6th Cir. Sept. 10, 1999) (cut chin and lip).

The district court found a “bodily injury” here (and so added two points) because of the

harm the T-Mobile employees suffered from Daniels’s macing. Did their harms suffice? To

answer that question, we begin with our standard of review. We review purely legal questions de

novo and purely factual questions for clear error. See United States v. Flores, 974 F.3d 763, 765

(6th Cir. 2020). But what about the ultimate or mixed question whether the historical facts about

the victim’s harms rose to the level required to qualify as “bodily injury” under our reading of

that guideline phrase? We have suggested that this question remains open in our court. See id.

But several cases also appear to deferentially review the question for clear error. See Jackson,

918 F.3d at 487; Person, 714 F. App’x at 552; Muhammad, 948 F.2d at 1456; United States v.

Fitzwater, 896 F.2d 1009, 1012 (6th Cir. 1990). We need not decide on the answer here because

we would uphold the district court’s conclusion under any standard.

The T-Mobile employees suffered a “painful and obvious” injury when Daniels maced

them. U.S.S.G. § 1B1.1 cmt. n.1(B). One employee testified that Daniels sprayed her “directly

in the face” with the mace. Trial Tr., R.116, PageID 740–41. The spray made her face feel like

it “was on fire.” Id., PageID 741. She tried to put water in her eyes, but the water did not help.

Id., PageID 731‒32. Paramedics later arrived and treated the other employee by pouring “saline”

No. 24-3260 United States v. Daniels Page 22

into her eyes. Id., PageID 741. But the testifying employee did not like people “touching [her]

eyes” so she had to stand outside in the cold to get relief. Id., PageID 731–32, 741. The mace

caused her pain into the night and “didn’t stop hurting until [she] fell asleep.” Id., PageID 741.

These harms exceed (or at least match) those that we have held suffice when robbers have hit a

victim’s head or body with a gun. See Person, 714 F. App’x at 551–52; Davenport, 30 F. App’x

at 339–40; Jones, 1999 WL 133262, at *4; Austin, 1996 WL 109500, at *11–12.

Related caselaw supports this conclusion. We, for example, have held that pepper spray

qualifies as a “dangerous weapon” under a different guideline enhancement because it can cause

“extreme pain” and impair bodily organs. United States v. Melton, 233 F. App’x 545, 547 (6th

Cir. 2007) (discussing U.S.S.G. § 2B3.1(b)(2)(E)). Similarly, we have held that a state pepper-

spray conviction can qualify as a “crime of violence” under a now-defunct guideline provision

because pepper spray (a “self-defense” tool) is “designed to cause intense pain.” United States v.

Mosley, 635 F.3d 859, 861‒62 (6th Cir. 2011) (citation omitted). These holdings reaffirm that

Daniels’s victims suffered a “painful and obvious” injury when he sprayed mace directly in their

faces. U.S.S.G. § 1B1.1 cmt. n.1(B).

Other circuit courts have reached similar results. The Ninth Circuit applied the

enhancement when a victim suffered a “burning sensation” from pepper spray and sought

treatment from paramedics. United States v. Alisic, 357 F. App’x 778, 780 (9th Cir. 2009)

(memorandum). The Tenth Circuit applied the enhancement when the victim suffered pain for

“at least ‘several hours’” after a macing. United States v. King, 2000 WL 1114248, at *3 (10th

Cir. Aug. 8, 2000) (order). And the Seventh Circuit applied the enhancement when the

defendant’s use of mace caused the victim’s eyes to burn so much that she could not wear

contacts. See United States v. Maiden, 606 F.3d 337, 340 (7th Cir. 2010); see also United States

v. Robinson, 20 F.3d 270, 278 (7th Cir. 1994). The harms from Daniels’s use of mace resemble

these harms.

Daniels responds by invoking the Fourth Circuit’s decision in United States v. Lancaster,

6 F.3d 208 (4th Cir. 1993) (per curiam). There, the defendant maced a security guard to escape

from an armed-truck robbery. See id. at 209. The guard felt “severe burning in his eyes and

cheeks,” but the mace caused no “lasting health problems.” Id. On these facts, the Fourth

No. 24-3260 United States v. Daniels Page 23

Circuit upheld the district court’s decision not to apply the bodily injury enhancement. Id. It

reasoned that the guard had suffered “only momentary” pain that “lasted minutes, not hours.” Id.

at 210–11. Yet Lancaster does Daniels no good. As the Third Circuit has explained, all these

“macing” cases show that this enhancement depends on “a factually specific inquiry” into the

harm each victim suffered. United States v. Harris, 44 F.3d 1206, 1218 (3d Cir. 1995); see

Robinson, 20 F.3d at 278–79. And like in the cases that have applied the enhancement, one of

Daniels’s victims suffered harm that lasted for hours, not minutes. So her harm qualified as a

bodily injury.

C. Criminal-History Score

Daniels lastly challenges the district court’s criminal-history calculations. The court

found that Daniels had six criminal-history points, which placed him in Criminal History

Category III. He argues that the court used two ineligible sentences to calculate these points: a

prior § 924(c) sentence from 2007 and a prior reckless-driving sentence from 2019.

1. Prior § 924(c) Conviction

a. According to Daniels’s presentence report, he served as a lookout for an armed

robbery of a Kroger in 2004. During this robbery, his accomplices brandished weapons and took

over $13,000. Daniels later pleaded guilty to two counts: conspiring to commit Hobbs Act

robbery (in violation of 18 U.S.C. § 1951(a)) and using or carrying a firearm during or relating to

a crime of violence (in violation of 18 U.S.C. § 924(c)(1)). In 2007, the district court sentenced

Daniels to 72 months’ imprisonment: 12 months for the Hobbs Act conspiracy and 60 months for

the § 924(c) offense. See United States v. Daniels, 2023 WL 5725406, at *2 (S.D. Ohio Sept. 5,

2023).

Significant legal events have happened since then. At the time of Daniels’s sentence, we

had held that his conviction for conspiracy to commit Hobbs Act robbery qualified as a “crime of

violence” and thus could support his § 924(c) conviction for using or carrying a firearm during

such a crime. See United States v. Taylor, 176 F.3d 331, 337–38 (6th Cir. 1999). But the

Supreme Court then found part of § 924(c) unconstitutional in United States v. Davis, 588 U.S.

445, 470 (2019). In response to Davis, we held that a Hobbs Act conspiracy no longer counted

No. 24-3260 United States v. Daniels Page 24

as a “crime of violence” under § 924(c). See Wallace v. United States, 43 F.4th 595, 601 (6th

Cir. 2022).

This intervening precedent showed that Daniels’s prior § 924(c) conviction likely rested

on a mistake: that his Hobbs Act conviction could serve as the “crime of violence.” In 2023,

Daniels moved to vacate his § 924(c) conviction under 28 U.S.C. § 2255. See Daniels, 2023 WL

5725406, at *2. But prisoners can seek this relief only if they remain in custody. See In re

Stansell, 828 F.3d 412, 416 (6th Cir. 2016). And Daniels had completed his sentence (including

supervised release) when he filed the motion. See Maleng v. Cook, 490 U.S. 488, 491–92 (1989)

(per curiam).

Daniels’s prior § 924(c) conviction thus remained on the books when the district court

sentenced him in this case. This conviction implicated both statutory and guidelines provisions

about the proper sentence he should receive for his three current offenses (another § 924

conviction, another Hobbs Act conviction, and a felon-in-possession conviction). Starting with

the statute: Daniels’s prior § 924(c) conviction triggered a mandatory minimum 25-year sentence

for his current § 924(c) conviction. See 18 U.S.C. § 924(c)(1)(C)(i). If he did not have any prior

§ 924(c) convictions, by contrast, his mandatory minimum sentence would drop to 7 years. See

id. § 924(c)(1)(A)(ii). The district court recognized that Daniels’s prior § 924(c) conviction

remained valid at sentencing. Still, the court refused to impose the 25-year minimum that this

conviction should have triggered for Daniels’s current § 924(c) conviction. It instead imposed

the shorter 7-year minimum.

Turning to the guidelines: they instructed the district court to “[a]dd 3 points” to his

criminal-history score for any “prior sentence of imprisonment exceeding one year and one

month.” U.S.S.G. § 4A1.1(a). Daniels received no points for his prior (still valid) Hobbs Act

conviction because the district court had sentenced him to only 12 months on this count. But the

district court imposed three points for his prior § 924(c) conviction. That decision bumped

Daniels into Criminal History Category III. When combined with a total offense level of 26, this

category triggered a guidelines range of 78 to 97 months for Daniels’s Hobbs Act and felon-in-

possession convictions. Yet his range would have decreased to 70 to 87 months if Daniels had

No. 24-3260 United States v. Daniels Page 25

fallen into Criminal History Category II. The district court ultimately imposed a 97-month

sentence for these two convictions.

Both sides appealed. The government appealed the district court’s refusal to impose the

25-year statutory minimum. And Daniels appealed the use of his § 924(c) conviction in his

criminal-history score. Meanwhile, the district court that had sentenced Daniels in his 2007 case

granted him a writ of error coram nobis and vacated the prior § 924(c) conviction. See United

States v. Daniels, 2024 WL 3939083, at *6 (S.D. Ohio Aug. 26, 2024). The government thus

opted to dismiss its appeal in this case. So we need only consider Daniels’s appeal.

b. Daniels raises two claims—one legal, the other discretionary. First, Daniels argues

that the district court committed an error of law by imposing criminal-history points for his prior

§ 924(c) conviction because the Supreme Court’s Davis decision left no doubt that the conviction

was unconstitutional. This claim misunderstands the law. We and the Sentencing Commission

both recognize that a defendant generally may not turn a sentencing hearing into a collateral

attack of a prior conviction used to enhance the defendant’s guidelines range. The Commission

has explained that defendants may not use the “current sentencing proceeding” to relitigate a

prior conviction. U.S.S.G. § 4A1.2 cmt. n.6. So district courts may refrain from counting an

allegedly invalid conviction only if the conviction has already “been reversed or vacated” or

“ruled constitutionally invalid in a prior case” at the time of sentencing. Id. Likewise, we have

repeatedly rejected a defendant’s efforts to avoid a sentencing enhancement based on the claim

that a prior conviction undergirding the enhancement violated the law in some way. See United

States v. Aguilar-Diaz, 626 F.3d 265, 269–71 (6th Cir. 2010); United States v. Lalonde, 509 F.3d

750, 767–68 (6th Cir. 2007); United States v. Bonds, 48 F.3d 184, 186–87 (6th Cir. 1995).

Under this law, the district court properly included Daniels’s prior § 924(c) conviction in

his criminal-history score. At the time of Daniels’s sentencing, no court had “reversed or

vacated” his prior § 924(c) conviction or found it “constitutionally invalid in a prior case[.]”

U.S.S.G. § 4A1.2 cmt. n.6. Instead, Daniels sought to relitigate the validity of this prior

conviction in the “sentencing proceeding” itself. Id. But he could not collaterally attack his

sentence in this way. See Aguilar-Diaz, 626 F.3d at 270. And although the district court later

vacated Daniels’s prior § 924(c) conviction in the coram nobis proceeding, this later-in-time

No. 24-3260 United States v. Daniels Page 26

event does nothing to show “on direct appeal” that the district court committed a mistake of law

at sentencing. United States v. Farley, 23 F. App’x 235, 237–38 (6th Cir. 2001) (per curiam).

In response, Daniels invokes the Commission’s statement that the district court may

disregard a prior conviction ruled “constitutionally invalid in a prior case[.]” U.S.S.G. § 4A1.2

cmt. n.6. He argues that our general decisions recognizing that Hobbs Act conspiracy cannot

support a § 924(c) conviction qualify as “prior case[s]” that found his conviction

“constitutionally invalid” before his sentencing. Id. Relying on a Seventh Circuit decision, he

adds that he need not point to a specific decision overturning his own conviction to satisfy this

prior-case requirement. See United States v. Jenkins, 772 F.3d 1092, 1098 (7th Cir. 2014). But

our precedent has rejected this approach. Even when we have believed that a prior conviction

was “invalid,” we have still counted it under the guidelines because no court had invalidated it,

unless the conviction violated the defendant’s right to counsel. Lalonde, 509 F.3d at 768. And

the Seventh Circuit’s contrary logic would broadly open up prior convictions to “collateral

attacks” during sentencing. Aguilar-Diaz, 626 F.3d at 270. That court suggested that general

precedent can permit collateral attacks if the precedent unambiguously applies to the defendant’s

conviction too. See Jenkins, 772 F.3d at 1097–98. But defendants will always claim that the

precedent on which they rely covers them. So when is it too much of a leap to allow for this type

of collateral attack? And when is it not? The Seventh Circuit did not say. We instead read the

sentencing guidelines as requiring a defendant to identify an order overruling the defendant’s

own conviction. Because Daniels did not have such an order here at the time of his sentencing,

the district court correctly applied three criminal-history points for his prior § 924(c) conviction.

Second, Daniels asks us to remand for resentencing as a discretionary matter even if the

district court committed no legal error. A federal statute governing our review suggests that we

“may . . . vacate, set aside or reverse any judgment . . . of a court lawfully brought before [us] for

review, and may . . . require such further proceedings to be had as may be just under the

circumstances.” 28 U.S.C. § 2106. This text grants appellate courts “broad discretion” to

remand for resentencing when appropriate. United States v. Grant, 15 F.4th 452, 459 (6th Cir.

2021) (quoting United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999)). We, for example,

have remanded to promote “judicial efficiency” when a sentencing amendment that would apply

No. 24-3260 United States v. Daniels Page 27

to a defendant has gone into effect after the defendant has appealed. United States v. Ralston,

110 F.4th 909, 924 (6th Cir. 2024) (citation omitted); see United States v. Martinez, 137 F.4th

858, 862 (3d Cir. 2025); United States v. Claybron, 88 F.4th 1226, 1230–31 (7th Cir. 2023); cf.

United States v. Gonzalez-Valencia, 133 F.4th 1072, 1078 (D.C. Cir. 2025).

As relevant here, we have also remanded for resentencing when a defendant obtained an

order overturning a prior conviction after the district court had used the conviction in its

guidelines calculations at sentencing. See Farley, 23 F. App’x at 236–38. In Farley, the district

court counted the defendant’s state conviction when determining her criminal-history score. Id.

at 236–37. While the case remained pending on appeal, the defendant obtained a state-court

order overturning this conviction. Id. at 237. We recognized that the district court committed no

error when relying on this prior conviction. Id. at 238. But we still remanded for resentencing as

a discretionary matter. Id. (citing United States v. Cox, 245 F.3d 126, 131 (2d Cir. 2001)).

Even still, we decline to remand here for two reasons. Reason One: The district court

recognized the potential invalidity of Daniels’s prior § 924(c) conviction at sentencing. Indeed,

it granted Daniels a big benefit (of debatable legality) based on its prediction that this conviction

would get overturned. Specifically, the court refused to impose a statutorily required 25-year

minimum sentence that this prior § 924(c) conviction would have triggered. See 18 U.S.C.

§ 924(c)(1)(C)(i). By instead imposing a 7-year minimum, the district court shaved off 18 years

from Daniels’s sentence. Unlike the district court in Farley, then, the district court here treated

the then-valid § 924(c) conviction as effectively invalid from the start. Cf. 23 F. App’x at 236–

38.

So why did the court add the three criminal-history points based on this prior § 924(c)

conviction? The court compromised: It chose to award Daniels the big benefit (by relying on a

7-year minimum rather than a 25-year minimum), but not this smaller one. The court’s choice

modestly increased his guidelines range (the top of his range increased by less than a year from

87 months to 97 months). And it imposed this modestly harsher sentence because of the need to

deter Daniels from future robberies. In fact, the court “want[ed] to give [Daniels] 25 years for”

his prior robbery and believed Daniels “deserve[d]” that sentence. Sent. Tr., R.102, PageID 534.

No. 24-3260 United States v. Daniels Page 28

But it felt like it could not issue the broader punishment given “the state of the case law as it

is[.]” Id.

Reason Two: The parties do not dispute that Daniels and his accomplices completed a

robbery of a Kroger. So a completed robbery undergirds his prior conviction for conspiring to

commit Hobbs Act robbery. And if the government had charged Daniels with aiding and

abetting this robbery (rather than with conspiring to commit it), his prior Hobbs Act conviction

would have still qualified as a “crime of violence” under § 924(c). See United States v.

Richardson, 948 F.3d 733, 741–42 (6th Cir. 2020). In that scenario, he likely would have

received the 25-year mandatory-minimum sentence. In addition, the district court imposed a 12-

month sentence for Daniels’s prior Hobbs Act conviction—just a month and a day shorter than

required for this (still-valid) conviction to trigger its own criminal-history points. See U.S.S.G.

§ 4A1.1(a). Yet the court likely imposed that short 12-month sentence because it had to impose

a consecutive 60-month sentence for the now-invalid § 924(c) count. If it had known that the

§ 924(c) conviction was invalid, it may well have imposed a longer sentence for the Hobbs Act

conviction (and rendered it eligible for the same criminal-history points). See Dean v. United

States, 581 U.S. 62, 67–69 (2017). All these technicalities mean that the guidelines range would

not take Daniels’s prior robbery into account at all. But the district court refused to put blinders

on to this dangerous robbery. It reasoned that the precedent finding § 924(c) unconstitutional did

not “erase” this crime. Sent. Tr., R.102, PageID 534. It thus considered it when choosing its

sentence.

For both reasons, we have no doubt that the district court would have imposed the same

sentence in any resentencing. And we would not promote “judicial efficiency” by remanding for

a foregone conclusion. Ralston, 110 F.4th at 924 (citation omitted). We thus decline to do so.

2. Prior State Conviction

Daniels lastly challenges the district court’s decision to give him one criminal-history

point for an Ohio “reckless” operation conviction in 2019. The district court counted this

conviction because it found as a fact that the state court had convicted Daniels “for driving while

No. 24-3260 United States v. Daniels Page 29

intoxicated[.]” Sent. Tr., R.102, PageID 524. Daniels claims that the court erred by looking at

the actual conduct that supported his reckless-operation conviction.

Under U.S.S.G. § 4A1.2, district courts should exclude some misdemeanor convictions

from a defendant’s criminal-history score. United States v. Rollins, 378 F.3d 535, 537 (6th Cir.

2004). They should exclude (among others) “[c]areless or reckless driving” convictions except

in certain circumstances. U.S.S.G. § 4A1.2(c)(1). At the same time, the commentary tells courts

to “always” count “[c]onvictions for driving while intoxicated or under the influence (and similar

offenses by whatever name they are known) . . . without regard to how the offense is classified.”

Id. § 4A1.2 cmt. n.5. The district court here counted Daniels’s reckless-operation conviction

because (even though it was presumptively excluded) Daniels had committed it by driving drunk.

The parties now debate whether the court had the power to consider the actual conduct

underlying Daniels’s conviction. According to Daniels, the district court should have followed

the “categorical approach” that considers only the elements of his crime of conviction and not

the conduct in which he engaged. See Mathis v. United States, 579 U.S. 500, 504 (2016).

According to the government, the court properly considered Daniels’s actual conduct in this

specific setting. See United States v. Washington, 103 F.4th 917, 922 (2d Cir. 2024).

We need not resolve this dispute because any error in using this prior conviction would

have been harmless. We have regularly found guidelines miscalculations harmless when they do

not affect a defendant’s ultimate guidelines range. See, e.g., United States v. Castro, 960 F.3d

857, 867 (6th Cir. 2020); United States v. Turner, 738 F. App’x 856, 865 (6th Cir. 2018); United

States v. Tucker, 206 F. App’x 459, 464–65 (6th Cir. 2006). This rule applies here. The district

court placed Daniels in Criminal History Category III after calculating his criminal-history score

as six. Without the one point for this reckless-operation conviction, Daniels’s score would have

fallen to five—which would have continued to place him in Criminal History Category III. And

Daniels points to no other evidence suggesting that this conviction could have affected the

outcome in another way. Even though the government raised this harmless-error argument in its

brief, Daniels said nothing about it in his reply.

We affirm.

No. 24-3260 United States v. Daniels Page 30

____________________________

CONCURRENCE / DISSENT

____________________________

HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.

I join the majority opinion except its rejection of Daniels’s request that we remand for

resentencing.

Daniels argues that the district court’s reliance on his 18 U.S.C. § 924(c) conviction

constituted legal error and, in the alternative, requests that we remand for resentencing as a

discretionary matter. At the time of sentencing, Daniels’s § 924(c) conviction was still valid.

But after sentencing, the district court in the § 924(c) case granted a writ of error coram nobis

and vacated that conviction. See United States v. Daniels, 2024 WL 3939083, at *6 (S.D. Ohio

Aug. 26, 2024). I agree with the majority that, because Daniels can point to no order

invalidating his § 924(c) conviction at the time of his sentencing, the district court did not

commit legal error when it scored three criminal-history points for Daniels’s prior § 924(c)

conviction. But I would analyze his request for a discretionary remand differently.

Under 28 U.S.C. § 2106, we “may . . . vacate, set aside or reverse any judgment . . . of a

court lawfully brought before [us] for review, and may . . . require such further proceedings to be

had as may be just under the circumstances.” In past cases where a sentence rests on a since-

invalidated conviction or guidelines recommendation, we have exercised our discretion to

remand for resentencing. United States v. Farley, 23 F. App’x 235, 238 (6th Cir. 2001)

(remanding where sentence-enhancing conviction was overturned while the appeal was pending

and defendant could have sought collateral relief); United States v. Ralston, 110 F.4th 909, 924

(6th Cir. 2024) (remanding where a guidelines change while the appeal was pending would have

allowed defendant to seek relief under 18 U.S.C. § 3582(c)); see also United States v. Cox, 245

F.3d 126, 131 (2d Cir. 2001) (remanding where sentence-enhancing conviction was overturned

while the appeal was pending); United States v. Hoey, 725 F. App’x 58, 62 (2d Cir. 2018)

(same); United States v. Martinez, 137 F.4th 858, 862 (3d Cir. 2025) (remanding where a

guidelines change while the appeal was pending would have allowed defendant to seek relief

No. 24-3260 United States v. Daniels Page 31

under 18 U.S.C. § 3582(c)). As Second Circuit explained in United States v. Cox, such an

approach spares the parties and the courts from expending the resources to litigate and resolve

the matter in a subsequent 28 U.S.C. § 2255 petition and is consistent with our preference for

resolving claims through direct appeal rather than postconviction proceedings. 245 F.3d at 131.

The majority offers two reasons for its decision not to remand. I find neither persuasive.

First, it contends that the district court recognized the invalidity of the § 924(c) conviction and

responded with a compromise, granting Daniels a significant benefit by shaving eighteen years

off his sentence, but still using the conviction to increase the top of his guidelines range by ten

months. As the majority notes, the district court’s recognition that the § 924(c) conviction was

effectively invalid distinguishes this case from Farley, where the district court simply found that

the prior conviction had not been overturned. But I fail to see why that distinction should make a

difference. Daniels still received a harsher sentence than the guidelines would otherwise

recommend based on a now-invalid conviction, and the resolution of his claim now, rather than

through postconviction proceedings, would benefit both the parties and the court.

Second, the majority contends that, based on the facts underlying Daniels now-invalid

§ 924(c) conviction, he could have been charged with aiding and abetting Hobbs Act robbery

rather than conspiracy, which could have resulted in a still-valid conviction for a “crime of

violence” under § 924(c), and would make Daniels eligible for the twenty-five-year mandatory-

minimum sentence. I would not hypothesize about what crimes Daniels could have been

charged with in a prior case or what conviction may have resulted. In any case, these

considerations do not change the fact that Daniels no longer has a valid § 924(c) conviction, and

it would benefit both the parties and the court to consider that development on direct appeal

rather than through a future collateral proceeding.

Because Daniels no longer has a prior § 924(c) conviction, and because that fact changes

his guidelines range, I would exercise discretion to remand for resentencing.