United States v. Douglas Wright

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 14a0057p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

│ Nos. 12-4445/4447/4448/4493

v. │

>

│

DOUGLAS L. WRIGHT (12-4445), BRANDON L. │

BAXTER (12-4447), CONNOR C. STEVENS (12- │

44480, and ANTHONY M. HAYNE (12-4493), │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland

No. 1:12-cr-00238—David D. Dowd, Jr., District Judge.

Argued: December 4, 2013

Decided and Filed: March 28, 2014

BEFORE: COLE and CLAY, Circuit Judges; BERTELSMAN, District Judge.*

_________________

COUNSEL

ARGUED: Anthony J. Vegh, Cleveland, Ohio, for Appellant in 12-4445. Kevin M. Schad,

FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant in 12-4447. Paul

L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan, for

Appellant in 12-4448. Dennis Belli, Columbus, Ohio, for Appellant in 12-4493. Duncan T.

Brown, UNITED STATES ATTORNEY’S OFFICE, Cleveland, OH, for Appellee. ON BRIEF:

Anthony J. Vegh, Cleveland, Ohio, for Appellant in 12-4445. Kevin M. Schad, FEDERAL

PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant in 12-4447. Paul L. Nelson,

FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellant in 12-

4448. Dennis Belli, Columbus, Ohio, for Appellant in 12-4493. Duncan T. Brown, UNITED

STATES ATTORNEY’S OFFICE, Cleveland, OH, for Appellee.

*

The Honorable William O. Bertelsman, District Judge for the Eastern District of Kentucky, sitting by

designation.

1

Nos. 12-4445/4447/4448/4493 United States v. Wright, et al. Page 2

COLE, J., delivered the opinion of the court with regard to Defendants Wright, Baxter,

and Stevens, in which CLAY, J., and BERTELSMAN, D.J., concurred. CLAY, J. (pp. 22–24),

delivered the opinion of the court with regard to Defendant Hayne, in which BERTELSMAN,

D.J., concurred.

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OPINION

_________________

COLE, Circuit Judge. In April 2012, Defendants-Appellants Douglas Wright, Brandon

Baxter, Connor Stevens, and Anthony Hayne were arrested after they placed explosives at the

base of a bridge along Route 82 in Brecksville, Ohio, and attempted to detonate them.

Unbeknownst to the defendants, the explosives were inert, and one of their co-conspirators was

in fact an FBI informant. All four defendants pleaded guilty to conspiracy to use a weapon of

mass destruction, 18 U.S.C. § 2332a(a)(2)(B) & (D), attempt to use a weapon of mass

destruction, § 2332a(a)(2)(B) & (D), and aiding and abetting in malicious use of explosives to

destroy a structure used in interstate commerce, § 844(i). The district court applied a 12-level

terrorism enhancement to each defendant’s sentence, pursuant to U.S.S.G. § 3A1.4.

All four defendants now challenge the application of the terrorism enhancement, which

requires that the offense be “calculated to influence or affect the conduct of government by

intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C.

§ 2332b(g)(5)(A). Additionally, Wright challenges his enhancement for leadership under

U.S.S.G. § 3B1.1(c), Baxter challenges the procedural reasonableness of his sentence, and

Stevens challenges both the procedural and the substantive reasonableness of his sentence,

including the length of his supervised release. We unanimously affirm the sentences of Wright,

Baxter, and Stevens. Judges Clay and Bertelsman also affirm Hayne’s sentence, whereas Judge

Cole would vacate Hayne’s sentence and remand for resentencing. Therefore, this opinion is the

opinion of the court except as to section II.A.3.

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I. OVERVIEW

A. Factual Background

The following is a summary of the key facts pertinent to this appeal. Although the

district court engaged in extensive fact-finding through briefing and held a hearing on sentencing

matters, some facts remained in dispute when the judgments were entered. The following

summary makes note of these disputes only if they may be relevant to resolving the issues on

appeal.

In the fall of 2011, Wright, Baxter, Stevens, and Hayne were involved to varying extents

with the Occupy Cleveland movement (“Occupy”), a loose-knit political group protesting

economic inequality. Some individuals affiliated with Occupy, including the four defendants,

briefly moved into an abandoned church in Cleveland. In October of 2011, the FBI sent a paid

informant—referred to throughout the district court proceedings as the CHS, for “confidential

human source”—to an Occupy protest in downtown Cleveland. The CHS was instructed to

watch for potentially violent activity. Through this assignment, the CHS met Douglas Wright,

and through Wright, the other defendants.

Wright and the CHS had intermittent contact that fall, during which time Wright

discussed his interest in escalating his political activities from protesting to more disruptive

actions. The CHS offered Wright and Baxter occasional odd jobs and paid them for their work.

He then had little contact with Wright and Baxter from November 2011 until February 15, 2012,

when Wright and the CHS met to discuss plans to protest during an upcoming NATO/G8 summit

in Chicago and considered obtaining riot gear to use there. According to Wright, the CHS gave

him $200 to purchase the gear and offered to arrange the sale. Wright, Baxter, and the CHS met

again a few days later and discussed the possibility of using stink bombs, explosives, or paint

guns in various locations, including the casino in downtown Cleveland. At this point, the FBI

decided to begin recording conversations between the CHS and the defendants.

The next significant conversation between the CHS, Wright, and Baxter occurred on

March 28, when they met to arrange the sale of riot gear from the CHS’s contact. The

conversation on this date was lengthy. In relevant portions, the three discussed participating in a

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“black block” protest group in Chicago for the purposes of assaulting police officers and

protecting other non-violent protestors from police aggression. As they drove, the men discussed

the possibility of “taking out a bridge,” and Wright observed of a particular structure, “this

would be a good one . . . .” Baxter noted that if they were to attack a bridge, the government

would respond by placing “security on almost every bridge in the entire [expletive] country.” He

also raised concerns that attacking a bridge might result in casualties. On that day, the CHS

created a recording of Wright and Baxter agreeing to purchase retractable batons and gas masks

through the CHS’s contact—actually an undercover FBI agent.

Wright, Baxter, the CHS, and, on some occasions, Stevens, met several times in late

March and early April. During this period, the group decided to obtain explosives for use in an

undetermined scheme, though precisely how this decision was reached remains in dispute. The

defendants recount that the CHS relentlessly prodded the group to purchase explosives, until they

eventually acquiesced. Nevertheless, Wright’s presentence investigation report (“PSR”)

indicates that, in March, “the idea of obtaining C-4 explosives was brought up,” and Wright

agreed to participate in a sale of the explosives on April 1, 2012, although he had previously

refused to commit to the purchase. Wright did not contest this characterization of the facts in his

memorandum objecting to portions of his PSR.

On April 7, the CHS, Wright, Baxter, and Stevens met and discussed, in a noncommittal

manner, several potential targets for attack, including a bridge in the Flats area of Cleveland and

the Federal Reserve, Fusion Center, and Justice Center buildings downtown. Wright suggested

submerging explosives in the Cuyahoga River and then detonating them as cargo ships passed

by. He asked the group if it could reach a “consensus” on his plan.

Eventually, the decision was made to use the explosives at the base of the Route 82

bridge in Brecksville, part of the Ohio state highway system. Again, the parties dispute who first

suggested the bridge as a target, who made the final proposal to attack the bridge, and when the

suggestions and ultimate decision-making occurred. The record, which includes transcripts of

several conversations between the CHS and various defendants, does not answer these questions

definitively. At a motion hearing, an FBI agent testifying for the government read from

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transcripts indicating that, on April 19, Wright suggested placing the C-4 under the bridge after

the CHS insisted that Wright’s plan to attack a cargo vessel would not work.

The group obtained the explosives on April 29, when the CHS picked up Wright,

Stevens, Baxter, and a new companion, Anthony Hayne, and drove them to a motel to meet an

undercover FBI agent posing as an arms dealer. (Hayne had been in contact with Wright,

Baxter, and Stevens in October of 2011 and claims that Wright suggested that they engage in

violent acts at that time. However, Hayne was not drawn into the bridge-bombing plot until

April 29.) At the motel, the agent delivered the group two inert C-4 explosive devices, as well as

the riot gear that Wright and Baxter had previously ordered, and showed the group how to

detonate the devices using a cellular phone. The next day, Wright, Baxter, Stevens, Hayne, the

CHS, and a sixth individual named Joshua Stafford drove to the area under the bridge, placed the

explosives at the base of a support column, and then absconded to a nearby restaurant, where

they attempted to detonate the bombs. According to a contested report prepared by the

defendants’ explosives expert, even if the C-4 had not been inert, the group had used too little of

it to cause anything more than minor damage to the bridge’s support piers.

B. Procedural History

Wright, Baxter, Stevens, and Hayne were indicted on May 3, 2012, on three charges:

conspiracy to use a weapon of mass destruction and attempt to use a weapon of mass destruction,

both in violation of § 2332a(a)(2)(B) & (D); and aiding and abetting in malicious use of

explosives to destroy a structure used in interstate commerce, in violation of § 844(i). The

defendants originally pleaded not guilty. However, Hayne entered a change of plea to guilty on

July 25, 2012, and subsequently cooperated with prosecutors. On October 21, Wright, Baxter,

and Stevens changed their pleas to guilty on all three counts. As the district court indicated, the

defendants opted to plead guilty at least in part because they believed that Hayne’s testimony

effectively contradicted an entrapment defense.

The PSRs of all four defendants calculated their base offense levels as 24 and added

12 levels for the terrorism enhancement. Additionally, the PSRs recommended a 2-level

leadership enhancement for Wright and a 2-level decrease for both Baxter’s and Stevens’s

acceptance of responsibility. Before the sentencing hearings took place, the district court

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considered various memoranda from the defendants objecting to material in their PSRs and

arguing that the terrorism enhancement should not apply, among other matters. The district court

also held a hearing pertaining to the terrorism enhancement and issued a memorandum opinion

and order explaining that the enhancement would be applied to Wright, Baxter, and Stevens.

These three defendants were sentenced on November 20, 2012.

Hayne’s sentencing occurred several days after his co-conspirators’. The court’s

memorandum regarding the terrorism enhancement did not contain findings specific to Hayne,

and this matter was not addressed in any detail at sentencing. Although the court acknowledged

Hayne’s assistance in testifying for the government, it avoided applying U.S.S.G. § 5K1.1—

which authorizes a departure for “substantial assistance” in an investigation or prosecution—on

the understanding that doing so would preclude the court from further varying downward based

on other factors.

Ultimately, the district court chose to apply substantial downward variances to all

defendants’ sentences pursuant to 18 U.S.C. § 3553(a). In a memorandum issued after the

sentencing hearings concluded, the court explained that it had opted to vary downward on the

basis of the inert nature of the explosives, the CHS’s role in facilitating the offense, and various

individual characteristics of the defendants. Wright was sentenced to 138 months in prison for

each offense, significantly below the guidelines range, which the court calculated as 324 to 405

months. Baxter received a sentence of 117 months and Stevens 97 months, also well under the

court’s guidelines calculations of 262 to 327 months and 188 to 235 months, respectively. At

Hayne’s hearing, the court acknowledged that a 60-month minimum applied and sentenced

Hayne to 72 months, down from a guidelines range of 262 to 327 months. All sentences were

concurrent, and all defendants were also sentenced to lifetime supervised release. See 18 U.S.C.

§ 3583(j); U.S.S.G. § 5D1.2(b)(1).

II. ANALYSIS

A. Terrorism Enhancement Under § 3A1.4

Section 3A1.4 of the Sentencing Guidelines authorizes a 12-level enhancement for “a

felony that involved, or was intended to promote, a federal crime of terrorism.” To define the

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phrase “federal crime of terrorism,” the guidelines provision directs us to 18 U.S.C.

§ 2332b(g)(5). See § 3A1.4, cmt. n.1. Section 2332b(g)(5) sets forth two requirements for an

offense to be considered a federal crime of terrorism: first, the offense must be “calculated to

influence or affect the conduct of government by intimidation or coercion, or to retaliate against

government conduct,” and second, the underlying act must be included within an enumerated list

of eligible offenses. This list includes violations of 18 U.S.C. § 844(i) (arson and bombing of

property used in interstate commerce) and § 2332a (use of weapons of mass destruction).

18 U.S.C. § 2332b(g)(5)(B)(i).

In order for the sentencing court to apply a terrorism enhancement, the government must

show by a preponderance of the evidence that the two requirements of § 2332b have been met.

See United States v. Layne, 324 F.3d 464, 473 (6th Cir. 2003); United States v. Graham,

275 F.3d 490, 517 (6th Cir. 2001). This court determined in Graham that the terrorism

enhancement can be applied to inchoate offenses, such as attempt and conspiracy. 275 F.3d at

516–17; see also, e.g., United States v. Mandhai, 375 F.3d 1243, 1247–48 (11th Cir. 2004)

(citing Graham). This approach is consistent with the text of § 3A1.4(a), which extends the

enhancement to felonies “that involved or [were] intended to promote, a federal crime of

terrorism,” rather than limit its application to only those substantive offenses listed in 18 U.S.C.

§ 2332b(g)(5)(B). U.S.S.G. § 3A1.4(a) (emphasis added).

We review the district court’s legal interpretation of the terrorism enhancement de novo,

and we review its factual findings for clear error. United States v. Fore, 507 F.3d 412, 414–15

(6th Cir. 2007); Graham, 275 F.3d at 513–14. “A factual finding is clearly erroneous when,

although there is evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” United States v. Tocco, 306

F.3d 279, 284 (6th Cir. 2002) (citation and internal quotation marks omitted).

1. Section 2332b(g)(5) Intent Requirement

The defendants do not dispute that they were charged with offenses making them eligible

for the terrorism enhancement. Rather, they argue that the government has not met its burden of

showing that they intended “to influence or affect the conduct of government” or “retaliate

against government conduct.” 18 U.S.C. § 2332b(g)(5)(A). Specifically, the defendants contend

Nos. 12-4445/4447/4448/4493 United States v. Wright, et al. Page 8

that they, as members of the Occupy movement, sought to influence corporate behavior or

disrupt the lives of the “one percent” but did not target the government specifically.

This court has not yet addressed in detail the meaning of the phrase “calculated to

influence or affect the conduct of government.”1 Other circuits have interpreted it as imposing a

specific intent requirement. See, e.g., United States v. Hassan, 742 F.3d 104, 148–49 (4th Cir.

2014); United States v. Siddiqui, 699 F.3d 690, 709 (2d Cir. 2012); United States v. Chandia,

395 F. App’x 53, 54, 60 (4th Cir. 2010); United States v. Stewart, 590 F.3d 93, 138 (2d Cir.

2009); see also United States v. Christianson, 586 F.3d 532, 539–40 (7th Cir. 2009) (noting that

a court is to consider the defendant’s “purpose” or “motive” in committing the offense). We

agree with this interpretation and the general principles developed by the courts that have

followed it.

A defendant has the requisite intent if he or she acted with the purpose of influencing or

affecting government conduct and planned his or her actions with this objective in mind.

Siddiqui, 699 F.3d at 709; Stewart, 590 F.3d at 137. Long-term planning, however, is not

required. Siddiqui, 699 F.3d at 709. Nor is it necessary that influencing the government be the

defendant’s ultimate or sole aim. United States v. Jayyousi, 657 F.3d 1085, 1114–15 (11th Cir.

2011); United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010). For example, a defendant who

provided material assistance to terrorist organizations, but claimed that his goal was to assist an

oppressed group of Muslims, is eligible for the enhancement regardless of his purportedly benign

motive. See Jayyousi, 657 F.3d at 1114–15.

Furthermore, specific intent may be found even if the record does not contain direct

evidence of the defendant’s particular frame of mind. See United States v. Dye, 538 F. App’x

654, 666 (6th Cir. 2013). In Dye, for instance, this court upheld the district court’s application of

1

The following Sixth Circuit cases address the terrorism enhancement generally: United States v. Dye,

538 F. App’x 654 (6th Cir. 2013) (affirming enhanced sentence of defendant convicted of firebombing bailiff’s

office); United States v. Amawi, 695 F.3d 457 (6th Cir. 2012) (affirming enhanced sentences of defendants engaged

in what they defined as jihadi training); United States v. Assi, 428 F. App’x 570 (6th Cir. 2011) (holding that the

term “government” in § 2332b(g)(5)(A) extends to foreign governments, and finding purported legality of

defendant’s actions under international law irrelevant to construction of § 2332b); United States v. Mason, 410 F.

App’x 881 (6th Cir. 2010) (rejecting argument that district court erroneously failed to use its discretion not to apply

terrorist enhancement); United States v. Graham, 275 F.3d 490 (6th Cir. 2001) (terrorism enhancement applicable to

conspiracy to commit offense enumerated at § 2332b(g)(5)(B)).

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the enhancement based on its “natural inference” that the defendant’s offense—firebombing the

office of a judge’s bailiff—illustrated that he had the necessary intent. Id.

Our sister circuits have upheld application of the terrorism enhancement to defendants

who sought to bomb or otherwise violently target government facilities. See, e.g., United States

v. McDavid, 396 F. App’x 365 (9th Cir. 2010); In re Terrorist Bombings of U.S. Embassies in E.

Africa, 552 F.3d 93 (2d Cir. 2008); United States v. Tubbs, 290 F. App’x 66 (9th Cir. 2008).

Similarly, the Eleventh Circuit found the enhancement appropriate for a defendant who plotted to

destroy electrical substations “in the hopes that power outages would lead to civil strife” and

enable him to demand changes to national foreign policy. Mandhai, 375 F.3d at 1248. In

contrast, the terrorism enhancement has been held inapplicable to a defendant who aimed to

victimize only private persons, even though his actions might have indirectly affected

government operations. See United States v. Leahy, 169 F.3d 433, 445–48 (7th Cir. 1999) (no

evidence of intent to affect government where defendant possessed the highly toxic substance

ricin and threatened to poison friends and family members by sending it through the mail).

With these background principles in mind, we turn to the individual defendants to assess

whether the district court properly determined, by a preponderance of the evidence, that the

intent requirement was satisfied.

2. Wright, Baxter, and Stevens

The defendants challenge the factual basis for applying the terrorism enhancement. The

district court held that the facts as set forth in the government’s sentencing memorandum

“clearly establish[], by a preponderance of the evidence, that the terrorism enhancement applies”

to Wright, Baxter, and Stevens. It reached this conclusion after holding a hearing regarding the

enhancement, at which both sides presented evidence and argument.

We review the facts relied upon by the district court and also look to the record as a

whole to determine whether the court committed clear error. See United States v. Herrera,

265 F.3d 349, 351 (6th Cir. 2001). The following facts support the district court’s determination.

First, according to the testimony of co-defendant Anthony Hayne, Wright, Baxter, and Stevens

expressed interest in obtaining explosives in November 2011, prior to the CHS’s involvement in

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the bridge-bombing plot. In his testimony, Baxter denied inquiring about explosives at this time,

but we defer to the district court’s credibility determinations absent reason to believe that they

are clearly erroneous. See United States v. Esteppe, 483 F.3d 447, 452 (6th Cir. 2007).

Second, Wright and Baxter expressed interest in participating in a “black block”—which

Wright defined as “a group of people that basically beat the [expletive] outta the cops and keep

the non-violent protestors from getting beat the [expletive] up by cops”—at the protests to be

held during the NATO and G8 summits in Chicago in May 2012. (Tr. 1D6, R. 184-1, PageID

2679.) Wright and Baxter also arranged to purchase gas masks, retractable batons, and canisters

of tear gas for use at the Chicago protests or elsewhere.

Third, Wright, Stevens, and Baxter participated in at least one recorded conversation

addressing the feasibility of using explosives in or immediately outside government buildings.

Wright suggested placing explosives outside of the Federal Reserve building in Cleveland in

order to blow up part of the building. Baxter suggested targeting the Northeast Ohio Regional

Fusion Center, to which Stevens responded, “Hell ya man, that would be a great [expletive]

target.” (Tr. 1D11, R. 184-4, PageID 2750.) Both Baxter and Stevens expressed awareness that

the Fusion Center was a government facility involved in national security. The record

demonstrates that this conversation took place several days after Wright and the CHS decided to

acquire explosives.

Fourth, there is evidence to indicate that all three defendants viewed the bombing as a

terrorist act, or at a minimum expected that it would be perceived as such. Baxter and Stevens

acknowledged that a bridge bombing would likely affect the conduct of government agencies by

prompting them to take heightened security measures:

Baxter: You know that . . . if this is some . . . this happens they’re gonna make

security on almost every bridge in the entire [expletive] country.

CHS: Yeah.

Wright: No, just the important ones. The really important ones. But I mean, they

got the Detroit [Avenue] bridge that would kill a bunch of people.

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(Tr. 1D6, R.184-1, PageID 2688.) Both Wright and Baxter also observed that they expected to

be sent to Guantanamo Bay if their bombing scheme was discovered. Additionally, after the

defendants had placed the inert explosives at the base of the bridge, Stevens commented that they

had “just committed the biggest act of, only act of terrorism, that I know [of] in Cleveland since

the 1960’s.” Stevens further characterized the bridge-bombing attempt as a “nice learning

experience” for “testing” the capacities of the explosive devices the group had planted or the

feasibility of future actions. (Tr. 1D33, R. 184-7, PageID 2820, 2830–31.)

Viewing this evidence cumulatively, we conclude that it is sufficient to support the

district court’s application of the terrorist enhancement, even though none of the above facts

alone would necessarily be sufficient. The evidence demonstrates that Wright, Baxter, and

Stevens undertook the bridge-bombing plot within a context of plans that they understood to

implicate government interests. They intended to engage in violent protests in Chicago, which—

to their minds, at least—would likely involve combat with law enforcement officers. They

considered using explosives to damage two government buildings, although they did not follow

through. They expected that the government would respond to the bridge bombing—that the

bombing would “influence or affect” the government—by taking new security measures. These

conversations establish that Wright, Baxter, and Stevens were aware of the consequences of their

acts and chose to act in ways that would bring about those consequences, even if they had other

goals in mind, such as antagonizing the “one percent.” The district court did not err in applying

the enhancement.

3. Hayne

We have reason to consider Hayne’s case separately. First, as a latecomer to the

conspiracy, Hayne did not participate in the conversations evincing an intent to affect the

conduct of the government. Second, the district court did not explicitly identify the facts upon

which it based Hayne’s enhancement for terrorism, other than to indicate at his sentencing

hearing that it had considered the question “at great length” in determining the sentences of

Wright, Baxter, and Stevens. Because I believe that the district court did not adequately explain

its basis for applying the enhancement to Hayne, I would vacate his sentence and remand for

resentencing.

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I first look to the record to determine whether there is sufficient evidence of Hayne’s

intent. Because Hayne was not a participant in most of the CHS’s recorded conversations, the

main source of information about Hayne’s involvement comes from his own testimony as a

prosecution witness.

Hayne testified that he met Wright in October 2011, that they temporarily lived in an

abandoned church together, and that Wright demonstrated an interest in explosives and was

considering setting off bombs in the church building. He also recounted that Wright had asked

him if he knew where to obtain explosives. In early November, Hayne was arrested on charges

unrelated to this case and remained in jail until January 3, 2012. As a result, he lost contact with

Wright and the others. When Hayne reconnected with Wright and Baxter in March, he learned

that they had some sort of violent plan and that they had scoped out an undisclosed location. But

Hayne testified that he did not know any details of the bombing plot until Wright informed him

on April 29, the day before the attempted detonation.

Hayne’s testimony alone is not sufficient to establish that he understood the bridge

bombing as part of a plot intended to affect or disrupt the government. On direct examination,

Hayne explained that he believed the purpose of the scheme to be to “stop the transportation of

the [one] percent.” He also made a similar claim in a signed statement to the FBI shortly after

his arrest, in which explained that he understood the bombing to have “something to do with

May Day, like the general strike and stopping people from going to work and something like

that.” (Mot. Hr’g, R. 179, PageID 2459, 2464–65.) The district court did not explicitly discredit

this testimony, though, if it had, we would show deference to such a credibility determination.

See Esteppe, 483 F.3d at 452.

In light of this evidence, it is not clear how the district court arrived at its conclusion that

Hayne possessed the necessary intent. The court might have inferred such intent from the

offense itself, might have discredited Hayne’s testimony regarding his motives and limited

knowledge of the plot, or might have imputed to Hayne the intent of his co-conspirators. See

U.S.S.G. § 1B1.3(a)(1)(B) (“relevant conduct” guideline); but see Stewart, 590 F.3d at 138–39

(holding that a mental state is not “relevant conduct” for purposes of applying the terrorism

enhancement). These methods might, or might not, have been sufficient to find that Hayne had

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the required intent. Without an explanation, we cannot determine whether the district court’s

legal interpretation of the sentencing guidelines was correct—a question that we review de novo.

See Fore, 507 F.3d at 414.

A court commits procedural error if it fails to adequately explain a chosen sentence. Gall

v. United States, 552 U.S. 38, 51 (2007). In this case, the lack of explanation was not harmless

error. See United States v. Vandeberg, 201 F.3d 805, 810, 812 (6th Cir. 2000). Hayne’s

guidelines-range sentence was four times longer with the enhancement than without it. Although

the district court then applied a substantial downward variance, we cannot know what sentence

Hayne would have received if the court had engaged in a more complete legal and factual

analysis that accounted for the differences between Hayne and the other defendants. Thus, I

would vacate Hayne’s sentence and remand for resentencing.

B. Wright’s Leadership Enhancement Under § 3B1.1(c)

Wright appeals the district court’s 2-level enhancement for his role in the offense as an

organizer, leader, manager, or supervisor of criminal activity. U.S.S.G. § 3B1.1(c). Wright’s

PSR recommended this enhancement on the basis that Wright served as the group’s leader by

enlisting the other defendants in the scheme, making contact with the CHS, first proposing that

the group use explosives, and selecting the Route 82 bridge as the group’s target. The district

court’s decision to apply the leadership enhancement appears to have been based at least in part

on its adoption of the facts provided in Wright’s PSR. However, the court also held a hearing in

order to clarify facts relevant to sentencing, at which an FBI agent and defendants Baxter and

Hayne testified.

At sentencing, Wright objected generally to the facts contained in the final PSR and to

the leadership enhancement. He now contends that the PSR contained three key inaccuracies:

(1) that Wright had recruited the other defendants into the conspiracy and initiated contact with

the CHS, (2) that Wright was the first person to mention making plastic explosives, and (3) that

Wright chose the bridge as the group’s target “after doing independent research.” Wright further

argues that the only true leader of the conspiracy was the CHS, as he arranged the sale of riot

gear and explosives, provided transportation to the defendants, and consistently encouraged them

to pursue the bridge-bombing scheme.

Nos. 12-4445/4447/4448/4493 United States v. Wright, et al. Page 14

We review for clear error the district court’s factual determinations pertaining to the

leadership enhancement. See United States v. McDaniel, 398 F.3d 540, 551–52 & n.10 (6th Cir.

2005); United States v. Beard, 394 F. App’x 200, 204–05 (6th Cir. 2010). The court’s legal

determinations are subject to “deferential” review. See United States v. Washington, 715 F.3d

975, 983 (6th Cir. 2013) (addressing uncertainty regarding the correct standard). The

prosecution bears the burden of proving leadership by a preponderance of the evidence.

Vandeberg, 201 F.3d at 811.

To receive an enhancement for one’s role in the offense, a defendant “must have been the

organizer, leader, manager, or supervisor of one or more other participants.” U.S.S.G. § 3B1.1

cmt. n.2. To determine whether a defendant’s involvement qualifies, courts are to consider “the

exercise of decision making authority, the nature of participation in the commission of the

offense, the recruitment of accomplices, . . . the degree of participation in planning or organizing

the offense, the nature and scope of the illegal activity, and the degree of control and authority

exercised over others.” Id. at cmt. n.4. More than one person may qualify as a leader or

organizer. Id. However, “[m]erely playing an essential role in the offense is not equivalent to

exercising managerial control over other participants.” Vandeberg, 201 F.3d at 811.

Despite the existence of some disputed facts regarding Wright’s role in the offense, our

review of the record leads us to conclude that the district court did not erroneously apply the

leadership enhancement. Hayne testified under oath that Wright had introduced him to the CHS,

spoke with him about obtaining explosives in November of 2011, and told him about the plan to

place the explosives beneath the Route 82 bridge. At the same hearing, Baxter testified that

Wright had encouraged the group to come to a “consensus” on their plan—which consisted, at

the time, of targeting a cargo ship by placing C-4 underwater and detonating it as a ship

approached. Although Wright’s plan was not carried out, this evidence supports the district

court’s interpretation that Wright acted as coordinator and sought the participation and

agreement of the others. Additionally, an FBI agent working with the CHS testified that Wright

suggested that the group meet “every couple of days,” and directed other defendants to set up

“secure” email accounts and to access online forums to facilitate planning. Baxter’s testimony,

as well as the FBI agent’s, is corroborated by transcripts of conversations recorded by the CHS.

Nos. 12-4445/4447/4448/4493 United States v. Wright, et al. Page 15

Wright’s main arguments against the application of the leadership enhancement are

largely beside the point. Although the CHS’s involvement may have been equal to, or even

greater than, Wright’s, a defendant does not need to have been the sole leader to qualify for an

enhancement. See United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009). And, as the

district court repeatedly pointed out, Wright and his co-defendants pleaded guilty, forgoing an

opportunity to argue that the CHS had entrapped them. Nor is Wright ineligible for the

enhancement on the basis that he initially declined to acquire C-4 explosives, that he did not

know how to use C-4, or that he repeatedly stated that he wished to avoid civilian casualties,

since none of these claims—even taken as true—are relevant to the question of Wright’s role

relative to his co-defendants. Ultimately, although Wright’s precise degree of leadership may be

open to debate, the district court’s decision to apply the 2-level enhancement was not clearly

erroneous on the evidence before it.

C. Procedural and Substantive Reasonableness

Baxter and Stevens challenge the procedural reasonableness of their sentences, and

Stevens also claims that his sentence was substantively unreasonable. In reviewing the

reasonableness of a sentence, we use a “deferential abuse-of-discretion standard.” United States

v. Alexander, 543 F.3d 819, 821 (6th Cir. 2008). First, we ensure that the district court has

committed no procedural error. A sentence is procedurally unreasonable if the sentencing court

committed such errors as “improperly calculating [] the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence,” Gall, 552 U.S. at 51, or if

a court failed to “consider all non-frivolous arguments in support of a lower sentence,” United

States v. Gunter, 620 F.3d 642, 645 (6th Cir. 2010); see also United States v. Bolds, 511 F.3d

568, 580–81 (6th Cir. 2007). We employ the clear error standard to review factual

determinations and the de novo standard to review legal ones. Bolds, 511 F.3d at 579.

If we are satisfied that a sentence is procedurally reasonable, we may then consider its

substantive reasonableness. This court finds a sentence substantively unreasonable “if the

district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to

consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent

Nos. 12-4445/4447/4448/4493 United States v. Wright, et al. Page 16

factor.” United States v. Camiscione, 591 F.3d 823, 832 (6th Cir. 2010) (citation omitted).

Sentences that fall within the properly calculated guidelines range are presumptively considered

reasonable, though the presumption can be rebutted. United States v. Vonner, 516 F.3d 382,

389–90 (6th Cir. 2008) (en banc).

If a party fails to object to a perceived error at sentencing after being afforded the

opportunity to do so, we review the claim for plain error only. To prevail, then, the party must

demonstrate that the district court committed a clear or obvious error that affected his substantial

rights as well as the “fairness, integrity, or public reputation of the judicial proceedings.” Id. at

386.

1. Baxter’s Claim of Procedural Unreasonableness

Baxter argues that his sentence is procedurally unreasonable because the district court

failed to address various objections he raised to purported inaccuracies in his PSR. He claims

that correction of these errors would have led the district court to determine that the terrorism

enhancement did not apply. Specifically, Baxter objected that the PSR incorrectly identified

March 28, 2012, as the date when the group decided to target a bridge and erroneously described

him as “the first person to mention blowing up a bridge.” He further objected that the PSR

omitted facts demonstrating that the CHS badgered Baxter into agreeing to the purchase of C-4

explosives, that the CHS ultimately selected the bridge as the target, and that Baxter was not

involved in the decision to use the C-4 on the Route 82 bridge but went along with the plan that

others had concocted. Lastly, he objected to the PSR’s determination that the government was

the intended victim of the bombing scheme. Baxter addressed the alleged discrepancies in a

memorandum filed within fourteen days of receiving the PSR. See Fed. R. Crim. P. 32(f)(1). He

also raised the same objections at sentencing, to which the court replied, “Very well. Those

objections have been considered and are denied.”

Baxter further claims that the court failed to comply with Federal Rule of Criminal

Procedure 32(i)(3)(B), which states, “[a]t sentencing, the court: . . . must—for any disputed

portion of the presentence report or other controverted matter—rule on the dispute or determine

that a ruling is unnecessary because the matter will not affect sentencing, or because the court

will not consider the matter in sentencing.” Rule 32 requires a defendant to raise his objections

Nos. 12-4445/4447/4448/4493 United States v. Wright, et al. Page 17

during the sentencing hearing. United States v. White, 492 F.3d 380, 415 (6th Cir. 2007).

Following the objection, “the court may not merely summarily adopt the factual findings in the

presentence report or simply declare that the facts are supported by a preponderance of the

evidence. Rather, the district court must affirmatively rule on a controverted matter where it

could potentially impact the defendant’s sentence.” Id. (internal citations and quotation marks

omitted); see also United States v. Vanhoose, 446 F. App’x 767, 769 (6th Cir. 2011). Rule 32

requires the court’s “literal compliance.” White, 492 F.3d at 415. However, Rule 32 errors are

subject to harmless error review, whereby a sentence may stand only if the reviewing court is

“certain that the error did not cause the defendant to receive a more severe sentence.” United

States v. Quail, 513 F. App’x 559, 563 (6th Cir. 2013) (citing United States v. Roberge, 565 F.3d

1005, 1011 (6th Cir. 2009)).

We first address Baxter’s argument that the court failed to resolve factual disputes

regarding the CHS’s role in facilitating the offense. This claim fails for two reasons: first, the

court heard testimony and argument regarding the CHS’s conduct at a hearing that took place

before sentencing, and second, the court repeatedly stated that it did not believe the CHS to be

responsible for the defendants’ actions, particularly in light of their decision to plead guilty. At

the aforementioned hearing, the court responded to a line of questioning regarding the CHS’s

role by observing that the defendants “did not follow the defense of entrapment” and then

commented that the case “[was] not about the CHS’s record.” Nevertheless, the court explicitly

cited the CHS’s conduct in explaining its decision to grant Baxter a substantial downward

departure from the guidelines range. The record, then, establishes that the court considered the

CHS’s role generally but did not resolve specific factual disputes regarding the CHS’s actions

and statements because it did not find these discrete issues relevant to Baxter’s sentencing. See

Fed. R. Crim. P. 32(i)(3)(B); see also United States v. Darwich, 337 F.3d 645, 666 (6th Cir.

2003) (“[C]ontroverted matters at sentencing only require a ruling if the disputed matter will

affect the eventual sentence.”).

Baxter also objected to various characterizations of his own role in the plot, specifically

his contributions to the group’s decision to acquire C-4 explosives and to target the Route 82

bridge. Baxter correctly notes that the court did not issue particular findings or rulings on these

Nos. 12-4445/4447/4448/4493 United States v. Wright, et al. Page 18

factual disputes. It did not reach a clear determination as to who first suggested purchasing

explosives or planting them under the bridge, or when exactly these decisions were made, as its

recitation of the facts in Baxter’s sentencing memorandum illustrates. The court may have

determined that these objections were irrelevant—for example, that enough evidence existed of

Baxter’s intent irrespective of the disputed facts—but it neglected to say as much.

Nevertheless, the court’s error was harmless. See Quail, 513 F. App’x at 563; Darwich,

337 F.3d at 666. Even if these factual disputes had been resolved in Baxter’s favor, the court

still would have had enough evidence to apply the terrorism enhancement. In its memorandum

explaining the applicability of the enhancement to Wright, Baxter, and Stevens individually, the

court pointed to ample evidence that Baxter did not dispute in his objections to the PSR. The

court’s decision to apply the enhancement in no way rested on an assumption or finding that

Baxter was (as the allegedly erroneous PSR paragraph indicates) the first defendant to mention

targeting a bridge; nor did it require the court to find that Baxter had participated in any

discussion in which the bridge scheme was definitively adopted. In the context of the record as a

whole, the district court’s failure to respond to Baxter’s specific factual objections was harmless

because we are assured that Baxter did not receive a more severe sentence as a result.

As for Baxter’s last objection—to the PSR’s characterization of the government as the

offense’s victim—we find that the court adequately addressed this matter by holding a hearing

regarding the terrorism enhancement and by issuing a 36-page memorandum opinion concluding

that both the law and the facts supported its application. Rule 32 serves to ensure that a court

does not “summarily adopt the factual findings in the PSR or simply declare that the facts are

supported by a preponderance of the evidence.” Vanhoose, 446 F. App’x at 769 (citation

omitted). The district court did neither in applying the terrorism enhancement. Baxter’s

sentence is affirmed.

2. Stevens’s Claim of Procedural and Substantive Unreasonableness

Stevens claims that the district court improperly calculated his sentence and erroneously

applied the terrorism enhancement, resulting in a procedurally and substantively unreasonable

sentence. Stevens’s first argument appears to be simply that the district court improperly

calculated his sentence because it did not impose only the 60-month minimum required by

Nos. 12-4445/4447/4448/4493 United States v. Wright, et al. Page 19

18 U.S.C. § 844(i). Stevens does not argue that the district court failed to account for the §

3553(a) factors or based the sentence on erroneous facts. See Gall, 552 U.S. at 51. To the extent

that Stevens attempts to argue something other than that the terrorism enhancement should not

apply, the cursory discussion contained in his brief is insufficient to present a claim to this court.

See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997).

Next, Stevens contends that his sentence is procedurally or substantively unreasonable

because the court failed to explain its decision to impose lifetime supervised release. See

18 U.S.C. § 3583(j) (“[T]he authorized term of supervised release for any offense listed in

section 2332b(g)(5)(B) is any term of years or life.”); U.S.S.G. § 5D1.2(b)(1) (authorizing term

of supervised release “up to life” for “any offense listed in 18 U.S.C. § 2332b(g)(5)(B), the

commission of which resulted in, or created a foreseeable risk of, death or serious bodily injury

to another person.”). Stevens further suggests that the district court may have believed lifetime

supervised release to be mandatory. We reject this argument, noting that at Baxter’s sentencing

hearing, held only hours before Stevens’s, the court indicated that it had discretion to impose the

lifetime term.

Turning to the sufficiency of the district court’s reasoning, at sentencing, Stevens’s

attorney asked the judge “to consider not imposing” lifetime supervision. When the court did in

fact impose the lifetime term, Stevens’s attorney made a general objection to his client’s

sentence but did not specifically challenge the imposition of lifetime supervised release.

However, the district court appeared to invite a general objection, as it asked Stevens’s attorney

whether there was “anything further [he] want[ed] to put on the record” and then immediately

followed this question by stating, “You can object to all my findings and keep that in the record.”

At this point, counsel responded, “I’ll just state for the record I object.”

Assuming that this objection is sufficient, the district court did not abuse its discretion,

much less plainly err, in assigning Stevens lifetime supervised release. Although the court did

not explain its reasoning for the term of supervised release at sentencing, it filed an 18-page

memorandum opinion the following day in which it enumerated and considered the 18 U.S.C.

§ 3553(a) sentencing factors. See United States v. Rossi, 422 F. App’x 425, 437 (6th Cir. 2011)

(considering court’s “discussion at sentencing and its written sentencing memorandum” in

Nos. 12-4445/4447/4448/4493 United States v. Wright, et al. Page 20

holding sentence procedurally reasonable); see also Vonner, 516 F.3d at 386 (suggesting that

court’s decision to deny request for downward variance may be adequately addressed in a

“written sentencing memorandum”). We again note that the court reached its conclusions after

ample opportunity for fact-finding afforded by briefing and a pre-sentencing hearing.

Specifically, the court considered the seriousness of the offense, Stevens’s history of promoting

violent anti-government rhetoric, and comments Stevens made after placing the explosives

indicating that he wished to pursue similar destructive acts in the future. The court also

remarked on Stevens’s “absence of . . . any educational ambition, coupled with his drug

addiction,” noting that it had “concern as to the future actions of the defendant once he has

served his sentence.” While the court’s discussion of supervised release in particular was brief,

its treatment of the sentencing factors overall was not, and we are satisfied that the court gave

adequate consideration to the interests served by pairing a below-guidelines sentence with

lifetime supervised release—namely, protecting the public from future, and potentially grave,

criminal acts, and deterring Stevens from drug abuse after his release. Cf. United States v. Deen,

706 F.3d 760, 765–66 (6th Cir. 2013) (contrasting permissible objectives of imprisonment versus

supervised release). The court did not neglect to consider the requisite factors, fail to explain its

reasoning, or choose the sentence arbitrarily. See Gall, 552 U.S. at 51; United States v. Webb,

403 F.3d 373, 385 (6th Cir. 2005).

Finally, Stevens claims that his sentence is substantively unreasonable because the court

impermissibly considered the length of supervised release in determining its downward variance.

For support, Stevens cites United States v. Johnson, in which the Supreme Court held that excess

time served in prison cannot be applied to reduce one’s term of supervised release. 529 U.S. 53,

59–60 (2000). However, Stevens does not cite any cases suggesting that a court cannot consider

the availability of supervised release in determining an offender’s prison sentence, or vice versa.

Such a consideration is not arbitrary or unreasonable. See Camiscione, 591 F.3d at 832. Rather,

it comports with the individualized determinations that 18 U.S.C. § 3553(a) requires a court to

make. Thus, the district court neither abused its discretion nor engaged in plain error. See

Alexander, 543 F.3d at 822. We affirm Stevens’s sentence.

Nos. 12-4445/4447/4448/4493 United States v. Wright, et al. Page 21

III. CONCLUSION

The sentences of Wright, Baxter, and Stevens are affirmed. For the reasons addressed in

Judge Clay’s opinion, the court also affirms Hayne’s sentence.

Nos. 12-4445/4447/4448/4493 United States v. Wright, et al. Page 22

_________________

OPINION

_________________

CLAY, Circuit Judge, concurring in part and announcing the judgment as to Defendant

Anthony Hayne. I agree with Judge Cole that Defendants Wright, Baxter, and Stevens qualify

for the terrorism enhancement of U.S.S.G. § 3A1.4, and I concur in affirming their sentences.

Furthermore, the district court did not err in applying the terrorism enhancement to Defendant

Hayne. We therefore AFFIRM his sentence as well.

Hayne met Wright six months before the attempted bombing of the Route 82 bridge.

Within a few weeks of meeting, Wright was telling Hayne about plans to bomb buildings and

bridges. For one of these plots, Wright discussed “creating a distraction on the Detroit-Superior

Memorial Bridge in order to draw police from downtown Cleveland, and then, in the absence of

police, committing violent acts.” (R. 228, Hayne Sentencing Op., at 3392–93.) Hayne thought

these plots were “kind of cool.” (R. 179, Sentencing Hrg. Tr., at 2455.) In early November

2011, Wright asked Hayne if he knew how to procure explosives. At around the same time,

Hayne was building and detonating smoke bombs—something Wright derided as “pussy shit.”

(Id. at 2457.) Wright and Baxter told Hayne just a month before the bombing about another plot

they had in the works, albeit in vague terms.

On April 29, 2013, Hayne accompanied Wright, Baxter, and the “confidential human

source” to a hotel room where they purchased two bombs from what turned out to be an

undercover FBI agent. But the agent delivered more than bombs—he also gave the group

ballistic vests, smoke grenades, and gas masks that Wright and Baxter had previously ordered.

The next day, Hayne acted as lookout while his codefendants planted the bombs on a support

column of the Route 82 bridge. Once the devices had been planted, Stevens told the others “This

is the biggest act of terrorism in Cleveland since the 1960s.” (Hayne Sentencing Op. at 3394.)

Hayne and his codefendants then drove to an Applebee’s and attempted to blow up the bridge.

Based on these facts, the district court did not clearly err when it applied the terrorism

enhancement of U.S.S.G. § 3A1.4 to Hayne. To briefly summarize the applicable standard,

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§ 3A1.4 applies to two categories of offenses: (1) felonies that “involved . . . a federal crime of

terrorism”; and (2) felonies that were “intended to promote[] a federal crime of terrorism.” The

statutory definition of “federal crime of terrorism” has two elements, and the government must

establish both by a preponderance of the evidence: (1) the offense must be “calculated to

influence or affect the conduct of government by intimidation or coercion, or to retaliate against

government conduct;” and (2) the offense must be one of the crimes listed in the statute.

18 U.S.C. § 2332b(g)(5).

The first category in § 3A1.4 is applicable to cases like the one before us now—cases

where the crimes of conviction are found among the enumerated terrorism offenses of 18 U.S.C.

§ 2332b(g)(5)(B). See United States v. Graham, 275 F.3d 490, 516 (6th Cir. 2001). The second

category in § 3A1.4 applies when the defendant’s crime of conviction is not one of the

enumerated terrorism offenses. In these cases, the government must prove by a preponderance

of the evidence that “the defendant has as one purpose of his substantive count of conviction or

his relevant conduct the intent to promote a federal crime of terrorism.” Id. Whichever § 3A1.4

category applies, the government must also prove by a preponderance of the evidence that the

defendant’s offense was “calculated to influence or affect the conduct of government by

intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C.

§ 2332b(g)(5)(A). We now hold that this element requires the government to prove that the

defendant specifically intended to influence or affect the conduct of government, and that a

“defendant has the requisite intent if he or she acted with the purpose of influencing or affecting

government conduct and planned his or her actions with this objective in mind.” Supra at 9. We

do not require that this intent be the defendant’s only purpose in committing the offense. So long

as the defendant intended to influence to conduct of government, the terrorism enhancement will

apply even if the defendant also harbored other motivations, such as an intent to gain financial

reward or impress a sweetheart. See United States v. Awan, 607 F.3d 306, 316–18 (2d Cir.

2010).

The specific intent standard we announce today is a legal issue concerning the proper

construction of the Guideline and the statute. However, whether a defendant “actually harbored

such an intent is a question of fact.” United States v. Reaume, 338 F.3d 577, 583 (6th Cir. 2003).

Nos. 12-4445/4447/4448/4493 United States v. Wright, et al. Page 24

We review the district court’s finding that the requisite intent existed for clear error. See

Graham, 275 F.3d at 513–14, 518–19. “Based on our review of the record, we cannot say that

the district court’s findings of fact are clearly erroneous.” Id. at 518.

Hayne is correct that he came into the plot to blow up the Route 82 bridge relatively late

in the day. But the record shows Hayne knew that this bombing was part of a larger scheme, of

which Wright was the mastermind. Wright had told Hayne about plans to bomb other major

pieces of infrastructure. Hayne saw the undercover agent deliver gear that would be used for

future acts of terrorist violence—not the Route 82 bridge bombing. Hayne testified that the goal

of destroying the Route 82 bridge was to “[s]top the transportation of the 1 percent” (Sentencing

Hrg. Tr. at 2459), but the coconspirators did not choose to spark class conflict by attacking a

private installation. Cf. United States v. Tankersley, 537 F.3d 1100, 1107 n.7 (9th Cir. 2008)

(noting that the district court had not applied the terrorism enhancement where the target was a

private facility and the bombers’ communiqué spoke only of corporate greed). A district court

need not wait for the defendant to confess a specific intent to influence the government. The

court can find this intent based on circumstantial evidence and reasonable inferences from the

facts presented. See supra at 9–10. The record in this case establishes that Hayne knew his

coconspirators were engaged in a larger scheme of terrorist violence. Knowing this, Hayne

decided to join the conspiracy to blow up the Route 82 bridge. The district court did not clearly

err when it determined that Hayne personally intended to influence or affect the conduct of

government by destroying this major piece of government infrastructure. See United States v.

El-Mezain, 664 F.3d 467, 571 (5th Cir. 2011); United States v. Hammoud, 381 F.3d 316, 356

(4th Cir. 2004), vacated on other grounds, 543 U.S. 1097 (2005); United States v. Mandhai,

375 F.3d 1243, 1248 (11th Cir. 2004).

For these reasons, the district court’s sentence of Hayne is AFFIRMED.