Petition for Writ of Certiorari — William Glenn Chunn, Petitioner v. United States
Supreme Court briefMay 10, 2024
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APPENDIX TO THE PETITION FOR A WRIT
OF CERTIORARI
TABLE OF CONTENTS
Judgment of the United States Court of Appeals for the
Fifth Circuit (Feb. 15, 2024)………………………………...1A
Opinion of the United States Court of Appeals for the Fifth
Circuit (Feb. 15, 2024)………………………………………..3A
28 U.S.C. § 1254(1)………………………………………….36A
Fifth Amendment…………………………………………...37A
Sixth Amendment…………………………………………..38A
18 U.S.C. § 1962…………………………………………..…39A
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United States Court of Appeals
for the Fifth Circuit
___________
No. 22-40619
___________
United States Court of Appeals
Fifth Circuit
FILED
February 15, 2024
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
William Glenn Chunn,
Defendant—Appellant.
____________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:20-CR-83-5
____________________________
Before Jones, Barksdale, and Elrod, Circuit Judges.
JUDGMENT
This cause was considered on the record on appeal and was argued by
counsel.
IT IS ORDERED and ADJUDGED that the judgment of the
District Court is AFFIRMED.
The judgment or mandate of this court shall issue 7 days after the time
to file a petition for rehearing expires, or 7 days after entry of an order denying
a timely petition for panel rehearing, petition for rehearing en banc, or motion
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for stay of mandate, whichever is later. See Fed. R. App. P. 41(b). The
court may shorten or extend the time by order. See 5th Cir. R. 41 I.O.P.
Certified as a true copy and issued
as the mandate on Mar 08, 2024
Attest:
Clerk, U.S. Court of Appeals, Fifth Circuit
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United States Court of Appeals
for the Fifth Circuit
____________
No. 22-40619
____________
United States Court of Appeals
Fifth Circuit
FILED
February 15, 2024
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jesse Paul Blankenship; William Glenn Chunn,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:20-CR-83-5
______________________________
Before Jones, Barksdale, and Elrod, Circuit Judges.
Per Curiam: *
Primarily at issue are whether the district court: abused its discretion
in denying Jesse Paul Blankenship and William Glenn Chunn’s continuance
motions; and erred in sentencing each to life imprisonment. They were
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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among 12 persons charged in an original four-count indictment, for which
there is a superseding indictment. Blankenship and Chunn were charged for
racketeering conspiracy, with Blankenship’s being also charged for (1)
violent crimes in aid of racketeering (VICAR)-kidnapping, and (2) conspiring
to commit such kidnapping. In their consolidated 14-day trial with more than
30 witnesses, a jury found them guilty of all charges. AFFIRMED.
I.
Blankenship and Chunn were members of the “Aryan Circle” (AC),
a “whites only” prison-based gang. Chunn served as vice president of AC’s
“federal system” and as a member of its “task force”—a confidential and
select group of members “capable of certain acts of violence” that served as
AC’s “hit squad”. Blankenship served as an AC “major”, exercising
authority over AC members in the Missouri Department of Corrections and
AC’s federal-prisons branch.
AC generally operated according to a “constitution”. To join, a
“prospect” was required to, inter alia, “put in work” by committing violence
at the direction of an AC member. Full members earned the right to wear the
AC “patch”—generally a tattoo of a diamond with a swastika on the inside
containing a circle with lightning bolts or “AC”. Prospects were also
required to undergo a background check, by which AC obtained and reviewed
the prospect’s “paperwork”—usually court documents, presentence
investigation reports, or criminal-history checks—to ensure he had not
previously cooperated with law enforcement or engaged in other conduct
prohibited by AC. AC did not limit its membership to prisoners.
Following the 14-day jury trial, Blankenship and Chunn were each
convicted of conspiracy to participate in a racketeering enterprise, in
violation of 18 U.S.C. § 1962(d). Blankenship was also convicted of: violent
crimes in aid of racketeering (VICAR)-kidnapping, in violation of 18 U.S.C.
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§ 1959(a)(1); and conspiracy to commit VICAR-kidnapping, in violation of
18 U.S.C. § 1959(a)(5). The court in 2022 sentenced each to life
imprisonment.
II.
Blankenship challenges venue. Appellants challenge the denial of
their continuance motions, the sufficiency of evidence, and numerous
sentencing rulings.
A.
Blankenship contends the evidence was insufficient to establish venue
in the Eastern District of Texas for his two VICAR offenses. Because he did
not preserve this issue in district court, review is only for plain error. E.g.,
United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that
standard, he must show a forfeited plain error (clear-or-obvious error, rather
than one subject to reasonable dispute) that affected his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that showing,
we have the discretion to correct the reversible plain error, but generally
should do so only if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings”. Id. (citation omitted).
Blankenship has not shown the claimed venue error affected his
substantial rights. “As a general rule, an error affects a defendant’s
substantial rights only if the error was prejudicial.” United States v. Reed, 974
F.3d 560, 562 (5th Cir. 2020) (citation omitted). Specifically, “defendant
must show a reasonable probability that the result of the proceedings would
have been different but for the error”. Id. at 562–63 (citation omitted).
Blankenship does not contend he suffered the requisite prejudice, only that
venue was erroneous.
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B.
Regarding Appellants’ challenges to the denial of their September
2021 continuance motions, they were indicted originally in October 2020 and
trial was set for February 2021. After four unopposed continuance motions
were granted, trial was reset for that August. In early July, Chunn’s opposed
continuance motion was granted, resetting trial for October 2021, a year after
their initial indictment. That September, Appellants filed the opposed
continuance motions at issue.
Their challenges to the denial of these motions are reviewed for abuse
of discretion. E.g., United States v. Capistrano, 74 F.4th 756, 777 (5th Cir.),
cert. denied, No. 23-5975, 2023 WL 8532046 (U.S. 11 Dec. 2023). The court’s
discretion in ruling on continuance motions is understandably broad. E.g.,
United States v. Mesquiti, 854 F.3d 267, 275 (5th Cir. 2017). To show such
abuse, Appellants “must show that the denial resulted in specific and
compelling or serious prejudice”. Id. (citation omitted). For our review, we
“look[] to the totality of the circumstances”, including: (1) “the amount of
time available”; (2) “defendant’s role in shortening the time needed”; (3)
“the likelihood of prejudice from denial”; (4) “the availability of discovery
from the prosecution”; (5) “the complexity of the case”; (6) “the adequacy
of the defense actually provided at trial”; and (7) “the experience of the
attorney with the accused”. United States v. Stalnaker, 571 F.3d 428, 439 (5th
Cir. 2009) (citation omitted).
1.
Appellants have not shown “specific and compelling or serious
prejudice” in the denial of a sixth motion to continue. Mesquiti, 854 F.3d at
275 (citation omitted). Blankenship asserts he was prejudiced because he
presented no witnesses at trial and counsel proceeded to trial without
reviewing all discovery. Chunn contends he had insufficient time to review
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discovery or prepare a defense with his attorney, and could not have properly
made a decision to testify with such insufficient time. Neither Appellant,
however, identifies any evidence he would have presented, witnesses he
would have called, or specific defensive strategies he would have employed if
given more time. See id. at 275–76 (requiring specifics in contentions of
prejudice); Capistrano, 74 F.4th at 777 (same).
2.
Instead, Appellants claim other prejudice related to the denial of their
continuance motions. Blankenship contends the claimed error in denying his
motion was compounded when the court erroneously allowed an unlisted
Government witness to testify. Chunn maintains: the court reversibly erred
in not granting his alternative discovery motion after denying his continuance
motion; and the denial of those motions had the cumulative effect of violating
his Fifth and Sixth Amendment rights.
a.
Regarding Blankenship’s contention that the harm in denying his
continuance motion was exacerbated when the court admitted testimony by
a Government witness not included on the Government’s witness list, a
“district court’s order instructing the government to provide a list of
witnesses is a discovery order”. United States v. Aguilar, 503 F.3d 431, 434
(5th Cir. 2007). Our court “review[s] the admission of evidence that violates
a discovery order”, as here, “for abuse of discretion”. Id.
The Supreme Court has explained there is no general constitutional
right to pretrial discovery of witnesses in non-capital cases. E.g., Weatherford
v. Bursey, 429 U.S. 545, 559–60 (1977). “The district court has great latitude
in fashioning the appropriate remedy for alleged discovery errors.” United
States v. Dvorin, 817 F.3d 438, 454 (5th Cir. 2016) (citation omitted). Our
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court “will order a new trial only where a defendant demonstrates prejudice
to his substantial rights”. Aguilar, 503 F.3d at 434 (citation omitted).
The court did not abuse its discretion. When determining whether to
sanction a party for violating a discovery order, the court “should consider
the following factors: (1) the reasons why disclosure was not made; (2) the
amount of prejudice to the opposing party; (3) the feasibility of curing such
prejudice with a continuance of the trial; and (4) any other relevant
circumstances”. Dvorin, 817 F.3d at 454 (citation omitted). First, the
disclosure was not made because the Government decided to call the witness
only when a gap—the result of a severance and a codefendant’s plea—
occurred in the trial schedule. Second, any prejudice to Blankenship was
minimal. The Government announced on a Friday its intention to call the
witness the following Monday, allowing defense counsel the weekend to
prepare. See id. (upholding admittance of testimony when Government
identified witness on morning of testimony). Additionally, the witness
testified about an incident disclosed during discovery. Third, Blankenship
does not assert the untimely disclosure of the witness was in bad faith. See
id. (noting no claim late disclosure was in bad faith); United States v. Garrett,
238 F.3d 293, 295 (5th Cir. 2000) (vacating district court’s exclusion of latenoticed Government witnesses where that court found no bad faith).
Neither has Blankenship demonstrated prejudice to his substantial
rights. See, e.g., Aguilar, 503 F.3d at 434. He has not shown “there was any
way in which []he would have been better prepared to subject [the witness’]
testimony to adversarial testing if his name had been disclosed on a witness
list”. Id. In fact, counsel extensively cross-examined the witness; and, as
noted, the incident addressed by the witness had been disclosed in discovery.
See id. (finding no prejudice).
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b.
Regarding Chunn’s two claims for other prejudice, we first turn to the
denial of his discovery motion.
i.
In response to the denial of his continuance motion, Chunn filed a
discovery motion requesting access within his prison facility to a computer
containing discovery materials. Chunn asserts the court reversibly erred in
denying that motion.
Early in the proceedings, the court entered an agreed protective order
stating discovery would “not be provided to defendant as originals or
duplicated, or otherwise disseminated, without further order of th[e] Court”.
The order further explained defendants would be “allowed to access and
review these materials; however, [they would] not be allowed to possess the
originals or a copy of these documents outside of the courtroom and/or in the
presence of defense counsel, absent prior permission from th[e] Court”. One
month before trial, Chunn filed his motion, essentially asking the court to
revise the protective order.
The court had compelling reasons for imposing the protective limits
on discovery. The Government asserted Chunn was actively attempting to
obtain discovery to disseminate it for retaliatory purposes. It pointed to an
instance in which one of its witnesses received a letter from an AC
communications hub that the witness believed to be a threat.
“We review the district court’s denial of a motion to modify a criminal
protective order for abuse of discretion.” United States v. Morales, 807 F.3d
717, 720 (5th Cir. 2015). “There is no general constitutional right to
discovery in a criminal case”. Weatherford, 429 U.S. at 559. “[T]he trial
court can and should, where appropriate, place a defendant and his counsel
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under enforceable orders against unwarranted disclosure of the materials
which they may be entitled to inspect”. Alderman v. United States, 394 U.S.
165, 185 (1969). Under Federal Rule of Criminal Procedure 16, the court
“may, for good cause, deny, restrict, or defer discovery or inspection, or
grant other appropriate relief”. Fed. R. Crim. P. 16(d)(1).
In deciding whether to modify a protective order, courts consider: (1)
“the nature of the protective order”; (2) “the foreseeability, at the time of
issuance of the order, of the modification requested”; (3) “the parties’
reliance on the order; and most significantly (4) whether good cause exists
for the modification”. Morales, 807 F.3d at 723 (citation omitted). “Good
cause is the most important of these factors in the criminal context, given that
phrase’s inclusion in Rule 16(d)(1).” Id.
Both the second and fourth factors weigh against modification. On
the second factor, Chunn sought to change only how he was permitted to
view the discovery material. The alleged need to view the material outside
the presence of counsel to aid in preparation would have been foreseeable at
the time of the agreed protective order’s issuance. For the fourth factor,
Chunn has not shown good cause. In this context, “good cause” includes
“changed circumstances or new situations” and it “factors in the other
party’s need for protection”. Id. at 723–24 (citation omitted). Again, Chunn
points to no legitimate changed circumstances and, even if he could, the
Government’s need for protection was legitimate. There was no abuse of
discretion. See id. at 720 (outlining standard of review).
ii.
Chunn asserts the ultimate effect of the denial of his continuance
motion was to violate his Fifth Amendment right to due process and Sixth
Amendment right to assistance of counsel.
“[O]nly an arbitrary or
unreasonable denial of a requested continuance will constitute a violation of
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the defendant’s Fifth or Sixth Amendment rights”. United States v. Hughey,
147 F.3d 423, 431 (5th Cir. 1998). As discussed, the district court did not
abuse its discretion in denying Chunn’s motion, and neither was the denial
“arbitrary or unreasonable”. Id.
C.
Appellants contend the evidence was not sufficient to support their
convictions.
Our court reviews timely sufficiency challenges de novo,
construing the evidence in the light most favorable to the verdict. E.g., United
States v. Sanders, 952 F.3d 263, 273 (5th Cir. 2020). “The jury’s verdict will
be affirmed unless no rational jury, viewing the evidence in the light most
favorable to the prosecution, could have found the essential elements of the
offense to be satisfied beyond a reasonable doubt.”
United States v.
Roetcisoender, 792 F.3d 547, 550 (5th Cir. 2015) (citation omitted). That
standard “leaves juries broad discretion in deciding what inferences to draw
from the evidence presented at trial, requiring only that jurors draw
reasonable inferences from basic facts to ultimate facts”. Coleman v. Johnson,
566 U.S. 650, 655 (2012) (citation omitted). Our court “resolve[s] any
conflict in the evidence in favor of” the verdict. Sanders, 952 F.3d at 273.
Additionally, “we defer to the credibility determinations of the jury, and we
reject the challenges to the sufficiency of the evidence based solely upon such
credibility determinations”. United States v. Perry, 35 F.4th 293, 317 (5th
Cir.), cert. denied, 143 S. Ct. 463 (2022).
The Government presented its case-in-chief through more than 30
witnesses and approximately 450 exhibits over the course of the 14-day trial.
Following the Government’s case-in-chief, Appellants rested without
presenting any evidence.
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1.
Blankenship does not contest the sufficiency of evidence for his
conviction for conspiracy to participate in a racketeering enterprise, in
violation of 18 U.S.C. § 1962(d). He does contest sufficiency for his
convictions for VICAR-kidnapping and conspiracy to commit VICARkidnapping, in violation of 18 U.S.C. § 1959(a)(1), (5).
To convict Blankenship of his VICAR offenses, the Government was
required to prove beyond a reasonable doubt, inter alia: “(1) an enterprise
existed; (2) the enterprise engaged in, or its activities affected, interstate
commerce; (3) it was engaged in racketeering activity; (4) the defendant
committed violent crimes; and (5) the defendant committed the violent
crimes to gain entrance to, or maintain or increase his position in, the
enterprise”. United States v. Shows Urquidi, 71 F.4th 357, 377 (5th Cir.)
(citation omitted), cert. denied sub nom. Iglesias-Villegas v. United States, 144
S. Ct. 268 (2023); see also 18 U.S.C. § 1959(a). Blankenship contests only
elements four and five.
a.
For VICAR element four’s requisite violent crime, the Government
charged Blankenship with kidnapping a former AC member (FAC), in
violation of Missouri state law. A person violates that kidnapping statute
when he, inter alia, “removes another person without his or her consent from
the place where he or she is found”. Mo. Rev. Stat. § 565.110.
Blankenship asserts there is insufficient evidence he removed FAC
without his consent from his girlfriend’s house. He contends FAC left the
house willingly. Testimony established that, after Blankenship and another
man entered the house unannounced and without knocking, Blankenship
explained to FAC’s girlfriend that he would take FAC with them, and it
appeared to FAC’s girlfriend that FAC had no choice but to leave with the
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pair. FAC testified: he was not willing to go with the group; thought he
would be “beat up or something” if he did not leave with them; believed
leaving with the group was a life-or-death choice; and was confined to a
vehicle with Blankenship, who held a gun on his lap.
FAC testified on cross-examination, however, that, before leaving
with Blankenship, he stated: “Hell, yeah. Let’s go. Okay. I’m ready”. He
also testified on cross that he left the house willingly.
Resolving “conflict[s] in the evidence in favor of” the verdict and
recognizing the jury “retains the sole authority to weigh conflicting evidence
and evaluate the credibility of the witnesses”, the evidence was sufficient to
show Blankenship removed FAC from the house without his consent.
Sanders, 952 F.3d at 273; United States v. Holmes, 406 F.3d 337, 351 (5th Cir.
2005) (citation omitted).
b.
For VICAR element five’s above-described requisite reason for
committing a violent crime, Blankenship contends the evidence did not
establish the kidnapping was committed for the purpose of maintaining or
increasing his position within AC.
Blankenship asserts the kidnapping occurred because of a personal
issue between FAC and another AC member, not as a matter of AC
punishment. Evidence, however, supports the contrary conclusion:
Blankenship kidnapped FAC because he did not provide his “paperwork”
proving he was not cooperating with a Government investigation. Also,
Blankenship explained in emails that he completed the kidnapping for the
benefit of AC and in hopes of earning membership on its “task force”.
Viewing the evidence in the requisite light most favorable to the verdict, a
jury could have reasonably concluded the kidnapping was done for the
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purpose of maintaining or increasing Blankenship’s position within AC. See
Shows Urquidi, 71 F.4th at 377 (listing element five).
2.
Chunn contends the evidence was insufficient to support his sole
conviction: conspiracy to participate in a racketeering enterprise, in violation
of 18 U.S.C. § 1962(d). To establish a racketeering-conspiracy violation
under 18 U.S.C. § 1962(c), the Government must prove beyond a reasonable
doubt: “(1) the existence of an enterprise that affects interstate or foreign
commerce, (2) that the defendant was Bemployed by’ or Bassociated with’ the
enterprise, (3) that the defendant participated in the conduct of the
enterprise’s affairs, and (4) that the participation was through Ba pattern of
racketeering activity’”. United States v. Posada-Rios, 158 F.3d 832, 855 (5th
Cir. 1998) (quoting 18 U.S.C. § 1962(c)).
Chunn contests elements one and three. He also contends the
evidence was insufficient because the trial testimony was primarily by former
AC members seeking sentence reductions.
a.
For element one, Chunn asserts AC is neither sufficiently cohesive
nor organized to be an “enterprise”. 18 U.S.C. § 1962(c). An “enterprise”
is “any individual, partnership, corporation, association, or other legal entity,
and any union or group of individuals associated in fact although not a legal
entity”. 18 U.S.C. § 1961(4). This definition “reaches a group of persons
associated together for a common purpose of engaging in a course of
conduct” and “is proved by evidence of an ongoing organization, formal or
informal, and by evidence that the various associates function as a continuing
unit”. Boyle v. United States, 556 U.S. 938, 944–45 (2009) (citation omitted).
“A jury may infer the existence of a RICO enterprise by considering largely
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or wholly circumstantial evidence.” United States v. Velasquez, 881 F.3d 314,
329 (5th Cir. 2018).
AC’s “constitution” outlined the history, purpose, “ethics”, beliefs,
and bylaws of AC. The document included a description of AC’s rigid
ranking system, a system witnesses repeatedly referenced and affirmed. To
join AC, prospective members underwent a period of “prospecting”
outlined in the “constitution”, typically lasting one year. The process
involved learning about AC, handwriting copies of its “constitution”, and
following every order. In addition to monthly dues, AC required members
attend district meetings once a month and ranking members attend a national
meeting annually. AC also tracked members through rosters identifying
members’ names, institutional affiliations, patch numbers, and release dates.
Substantial evidence supports the finding that AC was an ongoing, formal
organization, and its associates functioned as a continuing unit. See Boyle,
556 U.S. at 944–45.
b.
For element three, Chunn disputes his involvement in AC’s affairs.
“[T]o have participated in the conduct of the enterprise’s affairs, the
defendant must have participated in the operation or management of the
enterprise itself”. Velasquez, 881 F.3d at 330 (citation omitted). “An
enterprise can be operated by upper management and by lower rung
participants under the direction of upper management.” Id. Chunn held a
high rank in AC; made decisions about when to go to “war” with other prison
gangs; ordered attacks on a Zerbinos gang member, an AC member, an Aryan
Brotherhood member, and a homosexual inmate; and sold drugs in prison.
There was substantial evidence Chunn participated in, at least, the operation
of AC. See id. (explaining element three is met when defendant participated
in enterprise’s operation or management).
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c.
Likewise, Chunn fails to establish his conviction lacked sufficient
evidence by asserting many witnesses were former AC members cooperating
with the Government. “This Court has long held that a defendant may be
convicted on the uncorroborated testimony of a coconspirator who has
accepted a plea bargain, so long as the coconspirator’s testimony is not
B$) - $ ' .’” Perry, 35 F.4th at 317 (citation omitted). “Testimony is
incredible as a matter of law only if it relates to facts that the witness could
not possibly have observed or to events which could not have occurred under
the laws of nature.” Id. (citation omitted). Therefore, our court has
“allowed convictions supported only by one witness’ testimony to stand,
[w]hatever the problems with that witness’ credibility, if the account was
neither physically impossible nor outside his powers of observation”. Id.
(alteration in original) (citation omitted).
Chunn has not pointed to any trial testimony that was physically
impossible or outside the power of a witness’ observation. And, as discussed
supra, our court will reject sufficiency challenges based only on credibility
determinations. Id.
D.
Appellants’ numerous remaining challenges are to their sentences.
Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 46, 51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de
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novo; its factual findings, only for clear error. E.g., United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
“A factual finding is not clearly erroneous if it is plausible in light of
the record as a whole.” United States v. Zuniga, 720 F.3d 587, 590 (5th Cir.
2013). Re-stated, our court will find clear error in a factual finding “only if a
review of the record results in a definite and firm conviction that a mistake
has been committed”. Id. (citation omitted). “When making factual findings
for sentencing purposes, district courts may consider any information which
bears sufficient indicia of reliability to support its probable accuracy”. United
States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (citation omitted).
“Generally, a [presentence investigation report (PSR)] bears sufficient
indicia of reliability to be considered as evidence by the sentencing judge in
making factual determinations.” Id. (citation omitted). The PSR does not
convert bald, conclusory statements into sufficiently reliable facts. See id. at
230 n.2. If the PSR’s facts “are supported by an adequate evidentiary basis
with sufficient indicia of reliability”, however, “a defendant must offer
rebuttal evidence demonstrating that those facts are materially untrue,
inaccurate or unreliable”. Id. at 230 (citation omitted). Appellants presented
no evidence at sentencing disputing the PSR’s factual allegations.
For the Guidelines’ offense-level and criminal-history matrix, which
determines the Guidelines sentencing range, the primarily contested item by
each Appellant is his offense level. Along that line, Guideline § 1B1.1 outlines
the application of the Guidelines.
To calculate a Guidelines sentence, a court begins by first determining
the Chapter Two Guidelines section applicable to the offense based on the
Guidelines’ Statutory Index. Guideline § 1B1.1(a)(1). The Statutory Index
identifies Section 2E1.1 (“Unlawful Conduct Relating to Racketeer
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Influenced and Corrupt Organizations”) as the section applicable to
violations of 18 U.S.C. §§ 1962, 1963. Guideline app. A.
Second, the court must “[d]etermine the base offense level and apply
any appropriate specific offense characteristics, cross references, and special
instructions”. Id. § 1B1.1(a)(2). Section 2E1.1 applies a base offense level of
19, or “the offense level applicable to the underlying racketeering activity”.
Id. § 2E1.1(a). In determining the base offense level, the court is to consider
all relevant conduct. Id. § 1B1.3(a). Relevant conduct includes: “all acts and
omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant”; and, in joint-criminal
activity, “all acts and omissions of others that were—(i) within the scope of
the jointly undertaken criminal activity, (ii) in furtherance of that criminal
activity, and (iii) reasonably foreseeable in connection with that criminal
activity”. Id. The relevant conduct does not need to be charged or an
element of the offense. Id. § 1B1.3 cmt. background. In racketeering cases,
however, the relevant conduct must qualify as “racketeering activity”. See
id. § 2E1.1(a)(2); United States v. Flores, 912 F.3d 613, 621–23 (D.C. Cir.
2019); see also 18 U.S.C. § 1961(1) (defining “racketeering activity”).
Third, the court must “[a]pply the adjustments as appropriate related
to victim, role, and obstruction of justice from Parts A, B, and C of Chapter
Three”. Guideline § 1B1.1(a)(3). The court repeats these first three steps
for each count when there are separate counts of a conviction. Id.
§ 1B1.1(a)(4). For racketeering cases where, as here, “there is more than one
underlying offense”, the court must “treat each underlying offense as if
contained in a separate count of conviction”. Id. § 2E1.1 cmt. n.1. The court
will determine the offense level applicable to each underlying offense and
combine the points according to Guideline § 3D1.4. Id. § 3D1.1(a); see also
id. § 3D1.4(a).
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Finally, the court applies any adjustment for acceptance of
responsibility, determines defendant’s criminal-history category, and
calculates the resulting Guidelines sentencing range. Id. § 1B1.1(a)(5)–(8).
1.
Blankenship claims eight procedural errors. As discussed supra,
“[w]here there is more than one underlying offense”, the court must “treat
each underlying offense as if contained in a separate count of conviction”.
Id. § 2E1.1 cmt. n.1.
The PSR identified four offenses underlying
Blankenship’s conviction for conspiracy to participate in a racketeering
enterprise: 2016 kidnapping of FAC (Count 1A); 2016 attempted murder of
FAC (Count 1B); 2016 drug-trafficking conduct (Count 1C); and 2020
attempted murder of a rival gang-member (Count 1D). The district court
calculated the offense level for each underlying offense and combined the
units. See id. § 3D1.1(a) (outlining calculation process).
Blankenship contends the court reversibly erred in: applying a twolevel “serious bodily injury” enhancement and two-level dangerous-weapon
enhancement to Count 1A; applying the wrong base offense level to Count
1B; incorporating an unproved drug quantity, and including his 2016 drugtrafficking conduct as both underlying racketeering activity and criminal
history in Count 1C; employing the wrong burden of proof in finding Count
1D to be an underlying offense, and applying the incorrect base offense level
to that count; and applying a four-level organizer/leader enhancement.
All of Blankenship’s contentions, except for the two concerning
Count 1D, are reviewed for clear error. See Zuniga, 720 F.3d at 590 (finding
clear error “only if a review of the record results in a definite and firm
conviction that a mistake has been committed” (citation omitted)). For the
first of the two exceptions, his claim that the court evaluated Count 1D under
the incorrect Guideline section is reviewed de novo. E.g., Cisneros-Gutierrez,
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517 F.3d at 764 (explaining application of Guidelines is reviewed de novo).
Regarding the second exception, because he did not preserve the issue in
district court, his challenge to the offense level of Count 1D is subject to
plain-error review. See Puckett, 556 U.S. at 135 (outlining plain-error
standard).
a.
For the underlying racketeering activity of Count 1A—kidnapping
FAC in 2016—the offense level began at 32 according to Guideline
§ 2A4.1(a). The court increased the offense level by four points because it
found FAC suffered “serious bodily injury” and “a dangerous weapon was
used”. See Guideline § 2A4.1(b)(2)(B), (b)(3). Blankenship challenges both
enhancements.
i.
The court applied a two-level enhancement because it found FAC
sustained “serious bodily injury” during removal of his patch. See id.
§ 2A4.1(b)(2)(B) (“[I]f the victim sustained serious bodily injury, increase
by 2 levels”.). Blankenship contends FAC sustained only “bodily”, not
“serious bodily”, injury. The Guidelines’ commentary defines “[s]erious
bodily injury” as, inter alia, 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). By comparison, the
commentary defines the lesser “[b]odily injury” as “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). Therefore, at
issue is whether FAC suffered an “injury involving extreme physical pain”.
Id. § 1B1.1 cmt. n.1(M) (defining “[s]erious bodily injury”).
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After removing him from his girlfriend’s house, FAC’s kidnappers
drove him to an AC-member’s home and directed him to the basement where
several members were heating a metal rod with a blow torch. The AC
members allowed FAC to smoke from marihuana and meth pipes before
twice placing the heated rod against his torso in an attempt to remove his AC
patch. Afterward, Blankenship tattooed over FAC’s patch and explained
that, if it were up to him, he would have just killed him.
FAC testified at trial that Blankenship and the other AC members
“took it easy” on him and told him he “took that like a G[angster]”. He did
not seek medical aid.
Blankenship asserts: FAC never testified that he suffered extreme
physical pain; and the enhancement requires the victim subjectively
experience such pain. The Government counters the court could infer FAC
experienced extreme physical pain based on the testimony and circumstances
of the tattoo-removal.
Although FAC did not testify he felt the requisite “extreme physical
pain” during the patch removal, our court has never held a victim’s
testimony is the exclusive means of proving such pain. Rather, the district
court is permitted to reasonably infer such pain from the evidence. See
United States v. Garza-Robles, 627 F.3d 161, 169–70 (5th Cir. 2010) (“The
[PSR] indicates that [the victim] had been assaulted repeatedly resulting in a
broken rib, bruised buttocks, and cuts behind the ears. It was plausible for
the district court to find /# . $)%0-$ .$)1*'1 B 3/- ( + $)C ) /# - !*-
qualified as serious bodily injuries.”); United States v. Davis, 19 F.3d 166,
168–69, 171 (5th Cir. 1994) (finding no clear error where district court,
without reference to victim’s testimony, found “serious bodily injury” when
victim was bound, beaten, poked, gagged, and confined to vehicle trunk as
defendants drove across state lines); see also United States v. Shi Yong Wei,
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373 F. App’x 121, 123 (2d Cir. 2010) (“Where a victim has been beaten
bloody and unconscious, requiring emergency hospitalization (even briefly)
and stitches, any reasonable person would conclude that the injury caused
B 3/- ( +#4.$ '+ $)7CEL (+# .$. MM7# - !*- 6/# *0-/ $ )*/
clearly err in finding FAC suffered “serious bodily injury” when evidence
showed AC members restrained him, twice placed a heated metal rod on his
AC tattoo, and then tattooed over it. See Zuniga, 720 F.3d at 590 (“A factual
finding is not clearly erroneous if it is plausible in light of the record as a
whole.”).
ii.
The two-level dangerous-weapon enhancement is applicable “[i]f a
dangerous weapon was used” during a kidnapping. Guideline § 2A4.1(b)(3).
A “dangerous weapon was used” if the firearm was “discharged” or
“otherwise used”. Id. § 2A4.1 cmt. n.2. Because there was no evidence
Blankenship “discharged” his firearm, the enhancement applies only if he
“otherwise used” it. See id.
A firearm is “[o]therwise used” if “the conduct did not amount to the
discharge of a firearm but was more than brandishing, displaying, or
possessing a firearm or other dangerous weapon”. Id. § 1B1.1 cmt. n.1(J).
The Guidelines define “[b]randished” as “all or part of the weapon was
displayed, or the presence of the weapon was otherwise made known to
another person, in order to intimidate that person, regardless of whether the
weapon was directly visible to that person”. Id. § 1B1.1 cmt. n.1(C).
Therefore, at issue is whether Blankenship “more than brandish[ed],
display[ed], or possess[ed] a firearm” while kidnapping FAC. Id. § 1B1.1
cmt. n.1(J). Our court has explained:
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The threat to the victim must be specific rather than general.
Displaying a weapon without pointing or targeting should be
classified as “brandished,” but pointing the weapon at any
individual or group of individuals in a specific manner should
be “otherwise used.”
United States v. Dunigan, 555 F.3d 501, 505 (5th Cir. 2009) (citation omitted);
see also United States v. Sanchez, 603 F. App’x 259, 263–64 (5th Cir. 2015)
(rejecting Government’s request to expand definition of “otherwise used”
“to activity beyond . . . a direct physical threat caused by pointing or
otherwise targeting the weapon at the victims”).
There is no evidence Blankenship displayed a firearm as he entered
FAC’s home; there is evidence he placed one on his lap as the AC members
drove FAC to the patch-removal location. As they drove, FAC requested the
group drop him off at a tattoo shop so he could cover his patch there. The
AC members refused.
And, there is no evidence Blankenship pointed the gun at FAC; but,
its placement on Blankenship’s lap, in full view of FAC, and in a vehicle
containing only two other AC members, all while preventing him from
leaving the vehicle, could be threatening only to FAC. The threat to him was
therefore “specific” and “target[ed]” him. Dunigan, 555 F.3d at 505. The
court did not clearly err.
b.
For the underlying racketeering activity of Count 1B—attempted
murder of FAC in 2016—the court applied a base offense level of 33.
Guideline § 2A1.5(c)(2) (“If the offense resulted in an attempted murder or
assault with intent to commit murder, apply §2A2.1”.); id. § 2A2.1(a)(1)
(applying base level of 33 “if the object of the offense would have constituted
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first degree murder”). Blankenship contends the court applied the incorrect
base offense level.
The incident occurred several weeks after FAC’s patch removal. In
the middle of the night, Blankenship donned a mask and, with two other AC
members, entered FAC’s house. They kicked down the bedroom door and
found FAC in bed asleep with his girlfriend. Blankenship fired one shot at
FAC, striking the bedframe, before retreating from the house.
Blankenship contends that, even if he did shoot at FAC, he at most
committed aggravated assault, not attempted murder. See id. § 2A2.2 cmt.
n.1 (defining “[a]ggravated assault” as, inter alia, “a felonious assault that
involved (A) a dangerous weapon with intent to cause bodily injury . . . with
that weapon”). It was plausible in the light of the record as a whole for the
court to find that, when Blankenship broke into FAC’s house and shot at him
as he slept, the object of the attack was first-degree murder. The court did
not clearly err.
c.
Blankenship likewise challenges the 2016 drug-trafficking conduct
(Count 1C) the PSR included as underlying racketeering activity in his
offense-level computation. He asserts the court reversibly erred by:
sentencing based on an unproved drug quantity; and including the drugtrafficking conduct as both underlying racketeering activity and criminal
history, in violation of the Double Jeopardy Clause.
i.
The PSR recommended the court find Blankenship responsible for
535.714 grams of methamphetamine. The calculated quantity was based on
case material provided by the Government that police apprehended
Blankenship’s
vehicle
containing
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$30,000
in
proceeds
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methamphetamine sales. The PSR applied the 2017 price for 93-percent,
pure methamphetamine and reached the approximate 535.714 grams. The
court therefore applied Guideline § 2D1.1(c)(5) (explaining base offense
level is 30 for offenses involving at least 500 grams but less than 1.5 kilograms
of methamphetamine). Blankenship contends the Government did not meet
its burden of establishing the relevant drug quantity by the requisite
preponderance of the evidence.
“[A] district court may consider estimates of the quantity of drugs for
sentencing purposes.” United States v. Betancourt, 422 F.3d 240, 246 (5th
Cir. 2005) (alteration in original) (citation omitted). In making its fact
finding, the court “may consider any information that has sufficient indicia
of reliability to support its probable accuracy, including a probation officer’s
testimony, a policeman’s approximation of unrecovered drugs, and even
hearsay”. Id. at 247 (citation omitted).
There was trial evidence in addition to the $30,000 discussed by the
case material. A witness testified she observed Blankenship paying the
witness’ methamphetamine dealer a substantial amount of money and, based
on her observation, Blankenship was dealing more than a pound of
methamphetamine at a time. Another witness likewise testified Blankenship
was dealing large quantities of methamphetamine. The court also found that,
even if Blankenship did not directly engage in drug trafficking, he was
responsible for the amount based on trafficking of other members of the
conspiracy. See United States v. Fierro, 38 F.3d 761, 773 (5th Cir. 1994)
(observing district court may consider any reasonably foreseeable amounts
part of common plan or scheme); United States v. Castillo, 732 F. App’x 267,
268 (5th Cir. 2018) (“[Defendant] could be held accountable for all drug
quantities involved in the conspiracy”.).
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Additionally, a “[PSR] generally bears sufficient indicia of reliability
to be considered as evidence by the trial judge in making the factual
determinations required by the sentencing guidelines”. United States v.
Alford, 142 F.3d 825, 831–32 (5th Cir. 1998) (citation omitted). Again, when,
as here, the PSR’s factual allegations “are supported by an adequate
evidentiary basis with sufficient indicia of reliability, a defendant must offer
rebuttal evidence demonstrating that those facts are materially untrue,
inaccurate or unreliable”.
Harris, 702 F.3d at 230 (citation omitted).
Blankenship presented no rebuttal evidence. There was no clear error.
ii.
In contesting, on double-jeopardy grounds, the inclusion of this 2016
drug-trafficking conduct, Blankenship notes his PSR’s criminal-history
section includes a 2018 conviction for, inter alia, possession with intent to
distribute methamphetamine. Accordingly, he contests the PSR’s listing the
conviction as both criminal history and an underlying racketeering offense,
assigning points for both. Guideline § 2E1.1 cmt. n.4 (explaining conduct
considered part of “pattern of racketeering activity” should be treated as
prior sentence if it resulted in conviction prior to last overt act of instant
offense).
The listed conviction in Blankenship’s criminal history, however,
concerned
a
discrete
incident
regarding
only
4.65
grams
of
methamphetamine, and the PSR listed as an underlying racketeering offense
only the 2016 incident involving the $30,000 in methamphetamine
proceeds—an evidently different episode than the conviction for possession
of the 4.65 grams of methamphetamine. Blankenship offered no rebuttal
evidence demonstrating the conviction and the seizure of proceeds are the
same event. See Harris, 702 F.3d at 230. (Moreover, even if the court
improperly included the incident, Blankenship can show no harm because the
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evidence discussed supra showed he otherwise trafficked more than 500
grams of methamphetamine. See Guideline § 2D1.1(c)(5) (applying base
offense level of 30 if offense involved “at least 500 G[rams] . . . of
Methamphetamine”).)
d.
Blankenship also challenges the PSR’s inclusion of the attempted
murder of a rival gang-member (Count 1D) as underlying racketeering
activity in his offense-level computation. He contends the court used the
incorrect burden of proof in considering the underlying offense and applied
the wrong base offense level.
i.
He maintains the court erred by treating the attempted murder as an
underlying offense for the purposes of Guideline § 2E1.1 (explaining in
commentary that “[w]here there is more than one underlying offense, treat
each underlying offense as if contained in a separate count of conviction”)
because the attempted murder was not alleged in the superseding indictment.
He insists the alleged attempted murder falls under Guideline § 1B1.2(d) (“A
conviction on a count charging a conspiracy to commit more than one offense
shall be treated as if the defendant had been convicted on a separate count of
conspiracy for each offense that the defendant conspired to commit.”). In
applying Guideline § 1B1.2(d), our court has explained: “in the absence of a
verdict o- +' *) /#*. 0) -'4$)" B+. 0 *C *!! ). .E6 /# *0-/ )
consider underlying offenses only if “a reasonable trier of fact would find the
defendant guilty of those underlying offenses beyond a reasonable doubt”.
United States v. Jones, 699 F. App’x 325, 326 (5th Cir. 2017) (citing Guideline
§ 1B1.2(d) & cmt. n.4).
Because the jury did not make a finding on the underlying offense,
Blankenship asserts the court erred in employing a preponderance-of-the-
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evidence, rather than a beyond-a-reasonable-doubt, standard to find him
guilty of the attempted murder.
See id.
As noted supra, the court’s
application of the Guidelines is reviewed de novo. E.g., Cisneros-Gutierrez,
517 F.3d at 764.
Blankenship’s reliance on Guideline § 1B1.2(d) is misplaced. That
provision applies to multi-object conspiracies. A racketeering conspiracy,
however, is a single-object conspiracy. See 18 U.S.C. § 1962(d) (“It shall be
unlawful for any person to conspire to violate any of the provisions of
subsection (a), (b), or (c) of this section.”); see also United States v. Carrozza,
4 F.3d 70, 79 (1st Cir. 1993) (“In enacting RICO, Congress intended that a
series of agreements that under pre-RICO law would constitute multiple
conspiracies could under RICO be tried as a single enterprise conspiracy if
the defendants have agreed to commit a substantive RICO offense.” (citation
omitted)); United States v. Massino, 546 F.3d 123, 135 (2d Cir. 2008)
(explaining RICO is single-object conspiracy); United States v. Corrado, 227
F.3d 528, 541–42 (6th Cir. 2000) (same); United States v. Garcia, 754 F.3d
460, 482–83 (7th Cir. 2014) (same); United States v. Barragan, 871 F.3d 689,
717 (9th Cir. 2017) (same); but see United States v. Nguyen, 255 F.3d 1335,
1340–42 (11th Cir. 2001) (clarifying beyond-a-reasonable-doubt standard
applies to racketeering predicate acts in sentencing by analogy to multi-object
conspiracies).
The proper provision is, instead, Guideline § 2E1.1 (“Unlawful
Conduct Relating to Racketeer Influenced and Corrupt Organizations”). As
discussed supra, Guideline § 2E1.1 applies a base offense level of 19, or “the
offense level applicable to the underlying racketeering activity”. Guideline
§ 2E1.1(a) & cmt. n.1 (“Where there is more than one underlying offense,
treat each underlying offense as if contained in a separate count of
conviction”.).
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As also noted supra, the Guidelines explain that relevant conduct
includes “all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant”. Id.
§ 1B1.3(a)(1)(A).
The sentencing court may find such conduct by a
preponderance-of-the-evidence standard. See, e.g., United States v. Sandoval,
6 F.4th 63, 104 (1st Cir. 2021); Massino, 546 F.3d at 135. Therefore, the
district court appropriately considered the attempted murder in
Blankenship’s offense-level computation and correctly reviewed the
underlying offense under the preponderance-of-the-evidence standard. See
Sealed Appellee 1 v. Sealed Appellant 1, 767 F.3d 418, 424 n.26 (5th Cir. 2013)
(explaining preponderance means “[the fact being proved] is more likely than
not” (alteration in original) (citation omitted)).
ii.
In asserting the court erred in assigning a base level of 33 to the
attempted murder, Blankenship contends there was no evidence the offense
would have constituted first-degree murder; therefore, the base level should
be 27. See Guideline § 2A2.1(a) (applying base level of 27 if object of offense
was not first-degree murder). As pointed out earlier, because Blankenship
did not preserve this issue in district court, review is only for plain error.
Accordingly, also noted earlier, he must, inter alia, show a forfeited
plain error, i.e., a clear or obvious error. Puckett, 556 U.S. at 135. Guideline
§ 2A2.1 defines “[f]irst degree murder” as conduct that “would constitute
first degree murder under 18 U.S.C. § 1111”. Guideline § 2A2.1 cmt. n.1.
Section 1111(a) provides: “Murder is the unlawful killing of a human being
with malice aforethought.” 18 U.S.C. § 1111(a).
In that regard, there was: evidence Blankenship sent an AC member
to attack the rival gang-member; evidence of premeditation; two shanks
present at the scene on the body of the victim; and a puncture wound
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consistent with stabbing in the back of the victim’s skull. The court did not
commit the requisite clear or obvious error.
e.
Blankenship’s final sentencing challenge is that the court should have
applied Guideline § 3B1.1’s three-level manager/supervisor enhancement
instead of its four-level organizer/leader enhancement. See Guideline § 3B1.1
(“(a) If the defendant was an organizer or leader of a criminal activity . . .
increase by 4 levels. (b) If the defendant was a manager or supervisor (but
not an organizer or leader) . . . increase by 3 levels”.). When deciding
whether a person was an organizer or leader of a criminal activity, as opposed
to a manager or supervisor, a court is to consider
the exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment
of accomplices, the claimed right to a larger share of the fruits
of the crime, 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. § 3B1.1 cmt. n.4.
Evidence showed Blankenship: held the AC rank of “major” within
both the Missouri Department of Corrections and the AC federal-prisons
branch; ordered lower-ranking members to perform attacks; collected dues;
was recognized by prison officials as an AC leader; and recruited new AC
members.
In the light of the record as a whole, the court’s finding
Blankenship was a leader within the AC is not clearly erroneous.
2.
Chunn challenges six aspects of his sentencing, five of which are
procedural: the factual allegations in the PSR; the characterization of
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ordered stabbings as attempted murder instead of aggravated assault; the
four-level organizer/leader enhancement; the two-level obstruction-ofjustice enhancement; and the date found by the court for the beginning of his
racketeering activities. His sixth and final challenge is that his sentence is
substantively unreasonable. We first address the five claimed procedural
errors.
a.
As discussed supra, the district court must avoid significant
procedural error in applying the Guidelines, such as improperly calculating
the Guidelines sentencing range. E.g., Gall, 552 U.S. at 51. Each of Chunn’s
procedural claims is reviewed for clear error.
i.
For the PSR’s factual allegations of his involvement with the
conspiracy, Chunn denies participating in any acts that included murder,
kidnapping, or robbery. His appellate brief, however, almost exclusively
reiterates, including without citation to authority, his filed objections in
district court to the PSR. A party cannot incorporate by reference districtcourt assertions. See, e.g., E. R. ex rel. E. R. v. Spring Branch Indep. Sch. Dist.,
909 F.3d 754, 763 (5th Cir. 2018). And the brief must contain “appellant’s
contentions and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies”. Fed. R. App. P.
28(a)(8)(A). Accordingly, Chunn’s first claim is forfeited. See Spring Branch
Indep. Sch. Dist., 909 F.3d at 763.
ii.
Chunn contends the offense levels for the stabbings listed in the PSR
should have been calculated under Guideline § 2A2.2 (aggravated assault),
not Guideline § 2A1.5(a) (conspiracy or solicitation to commit murder).
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Chunn, however, identifies only one item of evidence relating to one
stabbing. He points to trial testimony stating he was upset after the brutal
attack on a homosexual inmate because the stabbing he ordered was not
supposed to be a murder. Other evidence, however, included trial testimony
that Chunn ordered an AC prospect to stab the inmate so severely that he
would be life-flighted to a hospital. One witness testified at trial that, after
the prospect had stabbed the inmate at least 13 times, Chunn made him go
back and “finish him out”. The prospect returned to the cell and struck the
bleeding inmate’s head and upper body multiple times.
The court accepted the PSR’s detailing of the stabbings and overruled
the objection based on, inter alia, the PSR and trial testimony. Chunn has not
demonstrated the facts stated in the PSR are materially untrue and, therefore,
has not definitely and firmly convinced our court the district court made a
mistake regarding the one stabbing he addresses. As for the other stabbings,
he forfeits his contentions because they are not adequately briefed. See Fed.
R. App. P. 28(a)(8).
iii.
Chunn challenges the court’s application of the four-level leadership
enhancement under Guideline § 3B1.1(a) (“If the defendant was an organizer
or leader of a criminal activity that involved five or more participants or was
otherwise extensive, increase by 4 levels.”). As discussed supra, when
deciding whether defendant was an organizer or leader of a criminal activity,
as opposed to a manager or supervisor, our court considers the factors listed
in Guideline § 3B1.1 cmt. n.4 (listing factors court should consider when
determining leadership enhancement).
The unrebutted facts in the PSR and trial evidence show Chunn
exercised decision-making authority, participated extensively in planning
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and organizing the offenses, and exercised a high degree of authority over
others. See id. Again, Chunn has not met his burden.
iv.
In contesting his two-level obstruction-of-justice enhancement under
Guideline § 3C1.1, Chunn contends the district court reversibly erred by not
addressing his contention that no evidence showed he possessed a firearm
when he attempted to intimidate an AC member who was cooperating with
law enforcement. The enhancement does not require the use or threatened
use of a firearm. Guideline § 3C1.1 cmt. n.4 (“The following is a nonexhaustive list of examples of the types of conduct to which this adjustment
applies: (A) threatening, intimidating, or otherwise unlawfully influencing a
co-defendant, witness, or juror, directly or indirectly, or attempting to do
so”.).
The court found Chunn had obstructed justice based on, inter alia: the
PSR; the trial testimony of three individuals; and letters from Chunn. Chunn
did not present rebuttal evidence demonstrating the PSR is materially untrue,
and we are not definitely and firmly convinced the court’s finding was
mistaken.
v.
For this final procedural claim, Chunn contends his arrests for robbery
in 2001, gun and drug possession in 2004, and drug possession again in 2004
were related to his racketeering charge, and, therefore, the district court
should have listed them as relevant conduct, not criminal history. Guideline
§§ 1B1.3 (outlining relevant conduct), 4A1.2(a)(1) (defining “prior
sentence”). The court, noting the PSR was supported by sufficient indicia
of reliability, found Chunn joined the AC on or about the date he admitted
his AC affiliation to law enforcement: 18 March 2009. As rebuttal evidence,
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Case: 22-40619
Document: 166-4
Page: 32
Date Filed: 03/08/2024
No. 22-40619
Chunn points to trial testimony in which a witness stated Chunn was just a
regular member of the AC and held no rank in 2004.
Even if we concluded the district court committed clear error by not
crediting this trial testimony, removal of the relevant arrests would not
change Chunn’s Guidelines sentencing range. He contends his proper
criminal-history category was IV, not VI as applied by the court. With his
offense level of 43, however, Chunn’s Guidelines sentence would be life even
with a criminal-history category of I. See id. ch. 5, pt. A (sentencing table).
In short, any error was harmless. See, e.g., United States v. Chon, 713 F.3d
812, 822 n.7 (5th Cir. 2013) (concluding Guidelines error is harmless if it does
not affect Guidelines sentencing range).
vi.
In addition, any procedural error by the district court was harmless
because “the error did not affect the district court’s selection of the sentence
imposed”. Delgado-Martinez, 564 F.3d at 753 (citation omitted). An error is
harmless “if the proponent of the sentence convincingly demonstrates both
(1) that the district court would have imposed the same sentence had it not
made the error, and (2) that it would have done so for the same reasons it
gave at the prior sentencing”. United States v. Ibarra-Luna, 628 F.3d 712, 714
(5th Cir. 2010). After the court had extensively commented on the reasons
for imposing the sentence, it stated that, even if it had erred in calculating the
Guidelines sentencing range, it would have imposed the same sentence
because it met the “sentencing objectives of punishment, deterrence, and
protection of the public”. See 18 U.S.C. § 3553(a) (sentencing factors);
United States v. Leontaritis, 977 F.3d 447, 452 (5th Cir. 2020) (finding any
potential error was harmless under similar circumstances).
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Date Filed: 03/08/2024
No. 22-40619
b.
For Chunn’s challenge to the substantive reasonableness of his
sentence, and as addressed supra, review is for abuse of discretion. E.g., Gall,
552 U.S. at 51. A within-Guidelines sentence is presumptively reasonable.
See, e.g., United States v. Jenkins, 712 F.3d 209, 214 (5th Cir. 2013).
“The presumption is rebutted only upon a showing that the sentence
does not account for a factor that should receive significant weight, it gives
significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” Id. (citation omitted).
Because Chunn does not identify any 18 U.S.C. § 3553(a) sentencing factor
the court omitted, overweighed, or erred in balancing, he does not show his
sentence is substantively unreasonable.
III.
For the foregoing reasons, the judgments are AFFIRMED.
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28 U.S.C. § 1254(1)
Cases in the courts of appeals may be reviewed by the
Supreme Court by the following methods:
(1) By writ of certiorari granted upon the petition of any
party to any civil or criminal case, before or after rendition
of judgment or decree;
(2) By certification at any time by a court of appeals of any
question of law in any civil or criminal case as to which
instructions are desired, and upon such certification the
Supreme Court may give binding instructions or require
the entire record to be sent up for decision of the entire
matter in controversy.
36A
FIFTH AMENDMENT
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of
a grand jury, except in cases arising in the land or naval
forces, or in the militia, when in actual service in time of
war or public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be
taken for public use, without just compensation.
37A
SIXTH AMENDMENT
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the state and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel
for his defense.
38A
18 U.S.C. § 1962
(a) It shall be unlawful for any person who has received
any income derived, directly or indirectly, from a pattern
of racketeering
activity or
through
collection
of
an unlawful debt in which such person has participated as
a principal within the meaning of section 2, title 18,
United States Code, to use or invest, directly or indirectly,
any part of such income, or the proceeds of such income, in
acquisition of any interest in, or the establishment or
operation of, any enterprise which is engaged in, or the
activities of which affect, interstate or foreign commerce. A
purchase of securities on the open market for purposes of
investment, and without the intention of controlling or
participating in the control of the issuer, or of assisting
another to do so, shall not be unlawful under this
subsection if the securities of the issuer held by the
purchaser, the members of his immediate family, and his
or their accomplices in any pattern or racketeering
activity or the collection of an unlawful debt after such
purchase do not amount in the aggregate to one percent of
the outstanding securities of any one class, and do not
confer, either in law or in fact, the power to elect one or
more directors of the issuer.
(b) It shall be unlawful for any person through a pattern
of racketeering
activity or
through
collection
of
an unlawful debt to acquire or maintain, directly or
indirectly,
any
interest
in
or
control
of
any enterprise which is engaged in, or the activities of
which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the activities
39A
of which affect, interstate or foreign commerce, to conduct
or participate, directly or indirectly, in the conduct of
such enterprise’s affairs through a pattern of racketeering
activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate
any of the provisions of subsection (a), (b), or (c) of this
section.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.