United States v. Varnell ( 2021 )

FILED
Appellate Case: 20-6040 Document: 010110617937 United
Date Filed: States CourtPage:
12/13/2021 of Appeals
1
Tenth Circuit
December 13, 2021
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 20-6040
v. (D.C. No. 5:17-CR-00239-D-1)
JERRY DRAKE VARNELL, (W. D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, SEYMOUR, and MURPHY, Circuit Judges.
I. Introduction
In 2018, a federal grand jury returned a superceding indictment charging
Defendant-Appellant, Jerry Drake Varnell, with maliciously attempting to destroy
property used in and affecting interstate commerce, in violation of 18 U.S.C.
§ 844(i), and attempting to use a weapon of mass destruction against any person
and property within the United States, in violation of 18 U.S.C. § 2332a. Varnell
moved to dismiss the charges on the grounds the government’s conduct during the
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
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investigation was so outrageous the government was constitutionally barred from
prosecuting the offenses. The district court denied the motion to dismiss the
charges. After Varnell was convicted, the court also denied his motion for
judgment of acquittal. Varnell was sentenced to serve a 300-month term of
imprisonment, a downward variance from the guidelines advisory range of life
imprisonment. The district court arrived at this sentence by applying the twelve-
level terrorism enhancement set out in § 3A1.4(a) of the United States Sentencing
Guidelines, an enhancement to which Varnell objected.
In this appeal, Varnell argues the district court erred in concluding the
government did not engage in outrageous conduct. He also challenges application
of the terrorism enhancement. Exercising jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742, we affirm the rulings of the district court.
II. Background
In 2015, Varnell began an online friendship with an individual named Brent
Elisens. The two initially shared a common interest in computers and computer
programming. They later began using Facebook’s group-messaging function to
discuss political and social issues with other individuals. 1 At one point, the group
made plans to obtain land and establish a small society free of capitalism. Elisens
told Varnell he was not interested in the group’s plans and intended to go “off
1
After a group discussion about the possibility the government could
monitor their online conversations, Varnell and Elisens began communicating
through a mobile application called TextLock, which encrypted their messages.
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grid” and leave all his possessions behind. Varnell agreed the group was naive
and expressed his belief that the United States was headed for civil war. Varnell
told Elisens he intended to form his own “team” and go after government officials
when that happened. Varnell also told Elisens he knew enough about chemistry
to make a bomb and stated: “It’s time to bomb some fucking banks.” Shortly
before Elisens left Oklahoma, Varnell sent him an encrypted message stating: “I
think I’m going to go with what the [Oklahoma City] bomber used, diesel and
anhydrous ammonia. I might have to make a distillery to process some stuff, but
that’s a solid recipe.”
When Elisens returned to Oklahoma a few months later, he was imprisoned
in the county jail for violating the terms of his supervised release. While in jail,
Elisens approached law enforcement about Varnell’s plans to build and detonate a
bomb. In January 2017, Elisens met with FBI agents and provided details about
his online conversations with Varnell. He later provided the FBI with copies of
text messages he had received from Varnell earlier in the year. Based on the
messages shared by Elisens, the FBI opened an investigation and retained Elisens
as a paid informant.
When Elisens was released from incarceration in March 2017, he
reestablished contact with Varnell, this time in his capacity as an informant for
the FBI. Elisens and Varnell continued their online discussions and the two met
in person several times. Elisens recorded the in-person conversations. Among
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other things, the two briefly discussed Varnell’s past plan to put a “team”
together. They also discussed the type of bomb Varnell was capable of building.
Elisens offered to introduce Varnell to an individual with bomb-making
knowledge whom he referred to as “the Professor.” The Professor was actually an
undercover FBI agent named Mark Williams. Varnell and Elisens met with Agent
Williams in early June. Varnell and Williams discussed types of explosives,
supplies, and potential targets. At two points in the conversation, Williams told
Varnell that he could back out of the plans but Varnell did not express any
hesitation in moving forward.
Varnell met with Williams again on June 26, 2017. The two discussed
obtaining untraceable mobile phones, barrels into which they would put
ammonium nitrate, and a vehicle into which they would load the barrels. They
also discussed potential targets, with Varnell telling Williams he believed the best
targets were located in Texas. Williams expressed logistical concerns about
choosing a location too far away. After the meeting, Williams contacted Varnell
and suggested they scout potential targets. When Williams picked up Varnell
from his residence on July 13, 2017, Varnell stated he wanted to drive to
Amarillo, Texas. At trial, Williams testified he was concerned by Varnell’s
request because the FBI surveillance plan did not include the possibility of a trip
to Amarillo. Williams told Varnell he was under the impression the plan was to
go to the BancFirst building in Oklahoma City. According to Williams, Varnell
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agreed with that suggestion and expressed no surprise when he mentioned the
BancFirst building. After they scouted the BancFirst building, Varnell described
it as “a good spot” because there was an alleyway adjacent to the building where
they could park the vehicle containing the bomb. At one point during the
scouting trip, Williams again asked Varnell if he still wanted to go through with
the plan. Varnell responded, “Fuck, yes.”
As the date approached to construct the bomb, Varnell failed to complete
several of the tasks assigned to him. Specifically, he was unable to secure a
vehicle in which to deliver the bomb. Elisens stepped in and purchased a van,
falsely telling Varnell he obtained the van from a person who owed him a favor.
Varnell also failed to obtain gloves, tape, and barrels in which to put the
ammonium nitrate. Accordingly, Williams drove Varnell to a store where Varnell
purchased gloves and electrical tape with money Williams gave him. Williams
and Varnell then drove to a storage locker where they used materials provided by
the government to construct a bomb. Varnell was unaware the bomb was inert.
Williams testified that Varnell was familiar with the process, participated in the
construction, and was able to identify nearly all of the components of the bomb.
After constructing the bomb, Varnell and Williams drove the van into the storage
facility lot and placed the bomb inside the van.
On the morning of August 12, 2017, Varnell drove the van containing the
inert bomb to Oklahoma City. Williams followed him in a separate vehicle.
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When Varnell arrived at the BancFirst building he was unable to pull into the
alleyway because it was blocked by a private security vehicle. Varnell circled the
area until the vehicle left. He then pulled into the alley and parked the van. After
arming the bomb, Varnell exited the van and got into Williams’s truck. Williams
drove to an area previously selected by the FBI and parked the truck. Varnell
then attempted to detonate the bomb three times by using a mobile phone. After
FBI bomb technicians confirmed that Varnell had correctly armed the bomb,
agents approached Williams’s truck and arrested Varnell.
Varnell was charged in a superceding indictment with maliciously
attempting to destroy property used in and affecting interstate commerce, in
violation of 18 U.S.C. § 844(i), and attempting to use a weapon of mass
destruction against any person and property within the United States, in violation
of 18 U.S.C. § 2332a. A week before trial, Varnell moved to dismiss the
superseding indictment, alleging outrageous government conduct. See United
States v. Wagner, 951 F.3d 1232, 1253 (10th Cir. 2020) (“When the government’s
conduct during an investigation is sufficiently outrageous, the courts will not
allow the government to prosecute offenses developed through that conduct
because [doing so] would offend the Due Process Clause of the Fifth
Amendment.” (quotation omitted)). The district court reserved ruling on
Varnell’s motion until the close of the government’s case-in-chief. The court
thereafter denied the motion from the bench. After the jury convicted Varnell of
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both counts, the district court denied his motion for judgment of acquittal.
Varnell was sentenced to serve a total term of 300 months’ imprisonment. The
district court calculated this sentence by applying the twelve-level terrorism
enhancement set out in § 3A1.4(a) of the Sentencing Guidelines. The court,
however, also varied downward from the advisory guidelines range of life
imprisonment.
In this appeal, Varnell challenges the district court’s refusal to dismiss the
indictment based on outrageous government conduct. He also asserts the district
court erred in applying the terrorism enhancement.
III. Discussion
A. Outrageous Government Conduct
This court “review[s] the denial of a motion to dismiss an indictment for
outrageous government conduct de novo.” Wagner, 951 F.3d at 1253. “To prove
outrageous government conduct, the defendant must show ‘either (1) excessive
government involvement in the creation of the crime, or (2) significant
governmental coercion to induce the crime.’” Id. (quoting United States v. Dyke,
718 F.3d 1282, 1288 (10th Cir. 2013)). In United States v. Russell, the Supreme
Court suggested that a defense based on outrageous government conduct may be
applicable when the “conduct of law enforcement agents is so outrageous that due
process principles would absolutely bar the government from invoking judicial
processes to obtain a conviction.” 411 U.S. 423, 431-32 (1973). To violate due
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process principles, however, the government’s conduct must “shock[] . . . the
universal sense of justice.” Id. at 432 (quotation omitted). In United States v.
Dyke, this court described the defense as “something of a curiosity” and noted a
plurality of the Supreme Court has backpedaled from the statements the Court
made in Russell, suggesting the remedy for outrageous government conduct “lies
‘not in freeing the equally culpable defendant, but in prosecuting the police under
the applicable provisions of state or federal law.’” 718 F.3d at 1285 (quoting
Hampton v. United States, 425 U.S. 484, 490 (1976)). In Dyke, we declined to
decide whether the defense is still viable in this circuit, but noted it has never
been applied by this court to strike down a conviction. Id. at 1287-88. As in
Dyke, it is unnecessary to determine whether the defense of outrageous
government conduct is available to defendants in this circuit because no such
conduct occurred in this matter.
This court has summarized “guiding principles” applicable to the defense
of outrageous government conduct as including (1) whether the government
“engineers and directs the criminal enterprise from start to finish,” and (2) “the
past and current criminal activities of the defendant.” Id. at 1288 (quotation and
alterations omitted). The government argues Varnell failed to show it engineered
the instant crimes from start to finish because Varnell had already formed a
general plan to bomb a building before the FBI began its undercover operation.
Varnell counters that he did not engage in any criminal activity until the FBI
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became involved, and the government devised the crime and directed it from its
inception. To the extent Varnell suggests that a lack of pre-investigation criminal
activity on his part made the government’s conduct per se outrageous, we reject
that suggestion. First, Varnell cites no authority for this proposition and, second,
we have previously discerned no due process concerns with permitting the
government to conduct an undercover investigation even when “the government
conceived and directed [the] crime in which defendant participated.” United
States v. Gamble, 737 F.2d 853, 858 (10th Cir. 1984) (holding the government’s
conduct was not outrageous even though it “used fictitious names to obtain
driver’s licenses, obtained insurance under those names for automobiles they did
not own, orchestrated the production of false accident reports, appeared in court
and pleaded guilty to traffic violations, and solicited defendant’s aid in making
false claims against insurance companies”).
Although not dispositive, Varnell’s conduct before the government began
its investigation is relevant to the question of whether the government’s conduct
was outrageous under the totality of the circumstances. But, even accepting
Varnell’s assertion that his initial conduct was neither criminal nor an indication
he had formed a concrete plan, the conduct was deeply disturbing. Varnell stated
he was “out for blood” and wanted to “go[] after government officials when [he
had] a team”; he expressed an intent to form a team “to bomb some fucking
banks”; and he told Elisens that “[t]he government is going to fucking burn with
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those who stand with it.” Varnell also touted his knowledge of bomb-making
chemistry, and he specifically stated: “I finally have a chance to do something
about how things are, I plan to do as much as I can. I’ve been reading about the
best places to find stuff to make bombs.” Varnell now asserts these statements
are akin to puffery. But, in light of the frequency and specificity of Varnell’s
statements, the FBI would have been remiss in ignoring them.
Varnell’s conduct after the FBI began its investigation likewise does not
support his position that he is entitled to dismissal of the charges based on
outrageous government conduct. See Dyke, 718 F.3d at 1288-89 (noting this court
has applied the totality-of-the-circumstances analysis by looking at, inter alia,
“how eagerly and actively the defendant himself participated in the current crime
charged”). Admittedly, the government played a substantial role in the plan by
providing all the materials necessary to complete the bomb and nearly all the
expertise. But, in Gamble, we held the government’s conduct was not outrageous
even though evidence demonstrated the details of the plan originated with the
government, not the defendant. 737 F.2d at 858. Further, Varnell’s role in the
crime was significant. He expressed no hesitation in meeting with Williams to
discuss the logistics of the bombing, and thereafter actively participated in
scouting targets and building the bomb. Crucially, Varnell drove the van
containing the inert bomb to the BancFirst building, circled the building until a
security vehicle left the alleyway, and then attempted to detonate the bomb three
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times. Although Williams provided Varnell with detailed instructions on how to
arm the bomb, Varnell independently, and correctly, followed those instructions.
These acts, which Varnell undertook entirely of his own volition, are alone
sufficient to support the two charges of which Varnell was convicted.
Varnell also argues several underlying circumstances support his position
that the government acted outrageously. First, he asserts the government took
advantage of his mental illness, and his appellate brief contains an extensive
discussion of his mental health diagnosis and treatment. At Varnell’s trial, Dr.
Shawn Roberson, a forensic psychologist, testified Varnell suffered from a mental
health disorder that contributed to his “lack of insight and poor judgment” and
caused him to be “passive and subordinate and deferential.” Varnell argues the
government took advantage of his medical condition by “feeding his paranoia.”
Varnell’s mental health, while relevant, does not tip the scales in favor of
concluding his due process rights were violated, particularly since he has not
shown the government was fully aware of his condition or purposefully targeted
him because of it. See United States v. Doe, 698 F.3d 1284, 1293 (10th Cir.
2012) (“[T]he outrageous conduct defense focuses on the government’s
conduct.”). Varnell asserts his mental health records were readily available for
the government to review but it failed to engage in any due diligence. He cites
no authority, however, for the proposition that the government acts in an
outrageous manner by failing to fully investigate the mental health of an
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individual targeted in an investigation. Further, although there was trial
testimony that in March 2017 the government became aware of an allegation
Varnell suffered from schizophrenia, one of the FBI agents involved in the
investigation testified she was not aware of any evidence Varnell suffered from
any “schizophrenic delusion or hallucinations during the course of [the]
investigation or on the day of his arrest.” Agent Williams, who interacted with
Varnell more than any other FBI agent, testified he was not told Varnell was
schizophrenic. And Dr. Roberson, Varnell’s expert witness, testified that Varnell
was “treated on an outpatient basis for schizophrenia between 2016-2017, and his
symptoms were described as being stable with psychotropic medication.” Dr.
Roberson also testified that unless a person with paranoid schizophrenia is
“exhibiting their paranoia towards you . . . or . . . talking about their delusions,”
“you might not ever know that they are mentally ill.”
Having reviewed the entire record, we conclude the evidence does not
show the government was aware Varnell was suffering from symptoms associated
with his mental illness during the period of its investigation. Neither does it
indicate agents knowingly took advantage of his mental illness to goad him into
participating in the bombing plan. Accordingly, Varnell’s mental health does not
support the conclusion that the government’s conduct was outrageous.
As part of our analysis of the overall circumstances, we also consider the
undisputed evidence that Elisens provided Varnell with marijuana and the two
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used it during their in-person meetings. Again, however, we must examine the
government’s conduct, not Elisens’s conduct, see id., and there is no evidence
supporting Varnell’s assertion the government “tolerated” Elisens’s conduct.
According to Elisens, he told the FBI he would stop using marijuana when he
became an informant. Further, Agent Eric Larsen testified the FBI admonished
Elisens when it reviewed the surveillance tapes and “learned that he not only was
smoking marijuana with Mr. Varnell but that he had actually taken marijuana to
some of [the] meetings.” The government’s conduct as to Elisens’s act of
providing marijuana to Varnell falls far short of shocking “the universal sense of
justice.” Russell, 411 U.S. at 432 (quotation omitted).
There is no denying the FBI’s investigation in this matter was aggressive
and its participation in constructing the bomb and choosing a target was
extensive. But this court has previously held that the outrageous government
conduct doctrine does not necessarily apply even when the government
“suggest[s] the illegal activity” and provides “supplies and expertise.” United
States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994). Further, the statements
Varnell made to Elisens before the investigation began were deeply troubling,
and Varnell voluntarily engaged in serious criminal conduct during the course of
the investigation. And Varnell has not shown that the FBI targeted him because
of his mental illness or exploited his mental health. Having considered all the
relevant circumstances, we conclude the government’s conduct was not
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“shocking, outrageous, and clearly intolerable.” Dyke, 718 F.3d at 1289
(quotation omitted). Thus, Varnell’s prosecution did not violate his right to due
process.
B. Terrorism Enhancement
Varnell also challenges his sentence, arguing the district court erred in
applying the twelve-level terrorism enhancement to calculate his advisory
guidelines range. See USSG § 3A1.4. According to Varnell, application of the
enhancement increased his advisory guidelines range from 151–188 months to
life imprisonment. He was sentenced to 300 months’ imprisonment only because
the district court varied downward.
“In determining whether the district court correctly calculated the
recommended Guidelines range, we review de novo the district court’s legal
conclusions pertaining to the Guidelines and review its factual findings[] . . . for
clear error.” United States v. Todd, 515 F.3d 1128, 1135 (10th Cir. 2008).
Pursuant to § 3A1.4 of the Sentencing Guidelines, a defendant whose crime of
conviction was “a felony that involved, or was intended to promote, a federal
crime of terrorism,” receives a twelve-level enhancement to his base offense level
and is assigned a criminal history category of VI. A “federal crime of terrorism”
is defined as an offense that “(A) is calculated to influence or affect the conduct
of government by intimidation or coercion, or to retaliate against government
conduct” and “(B) is a violation of . . . [18 U.S.C. §§] 844(i) . . . [or] 2332a.” 18
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U.S.C. § 2332b(g)(5); see also USSG § 3A1.4, cmt. n.1. Varnell does not dispute
that the crime of conviction falls within the second part of this definition.
In the objection Varnell raised before the district court, he asserted
generally that the enhancement should not apply unless the government presented
“some evidence that the ‘plot’ that developed during the spring and summer of
2017 was [his] and that he intended to influence, affect or retaliate against
government conduct.” The United States Probation Office responded to this
objection in the Presentence Investigation Report (“PSR”) as follows:
[T]he probation officer believes that there is sufficient grounds,
based on statements the defendant made to [Elisens] and [Williams]
and in social media postings, that the purpose of this planned
bombing was to either influence or affect the conduct of the
government by intimidation or coercion, or to retaliate against
government conduct. The defendant specifically discussed targeting
federal facilities or data centers because of the impact that loss of
such targets would have on commerce and the government, and his
desire to cause harm to the government.
When the district court overruled the objection, it stated:
With respect to this objection, . . . the Court agrees with and adopts
the response of the report writer. There was ample evidence
introduced during trial that the defendant’s actions were motivated
by anger toward the government and a desire to incite a revolution.
One need look no further than his so-called manifesto that he
intended to disseminate via the Internet after the planned bombing.
The “manifesto” to which the district court referred was the following statement
Varnell drafted shortly before the planned detonation of the bomb:
What happened in Oklahoma City was not an attack on America, it
was retaliation. Retaliation against the freedoms that have been
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taken away from the American people. It was a wake-up call to both
the government and the people, an act done to show the government
what the people thinks [sic] of its actions. It is also a call to arms, to
show people that there are still fighters among the American people.
The time for revolution is now.
Elisens testified that Varnell sent him the statement and asked him to disseminate
it online after the bombing.
On appeal, Varnell makes two narrow arguments. First, he asserts the
manifesto is not dispositive of the question of whether the terrorism enhancement
applies because it was written at the “insistence” of Elisens as part of “consistent
and heavy-handed pressure” placed on him to participate in the bombing. 2 In the
same vein, he further asserts the record evidence is insufficient to show he had
the specific intent required by 18 U.S.C. § 2332b(g)(5) because the plan was
concocted by the FBI and he was pressured into participating. Varnell’s
argument, however, is unresponsive to the relevant question of why he
participated in the crimes of conviction. And, as to that question, Varnell has not
2
Varnell also argues application of the enhancement was procedurally
unreasonable because the district court failed to make necessary findings to
support it. He asserts the court simply relied on the statement by the Probation
Office in the PSR. This argument is unavailing for two reasons. First, Varnell
failed to raise this issue before the district court. See United States v. Steele, 603
F.3d 803, 807 (10th Cir. 2010) (“If [defendant] had objections to the sentence
imposed or, more particularly, to the decision-making process, he could and
should have raised them at a time and in such a way as to afford the trial judge an
opportunity to correct any error, clarify any ambiguity or elaborate as
necessary.”). Second, there was no procedural error. The district court clearly
stated its decision was based on the language of the manifesto and other
“evidence introduced during trial.”
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pointed to any evidence showing either the FBI or Elisens provided him with a
motivation to participate in the bombing plan. For example, even if, as Varnell
argues, Elisens influenced his decision to draft the manifesto containing his
objectives for bombing the BancFirst building, he does not point to record
evidence showing Elisens suggested any of the language or otherwise assisted
him in composing it. There is likewise no evidence the FBI suggested to Varnell
that he could, or should, incite a revolution by bombing buildings.
Varnell’s second argument is raised for the first time in his reply brief. He
asserts that the retaliation ground of 18 U.S.C. § 2332b(g)(5) cannot support
application of the terrorism enhancement unless the government conduct against
which he was allegedly retaliating was specifically identified. This argument is
based on this court’s recent ruling in United States v. Ansberry, 976 F.3d 1108,
1129 (10th Cir. 2020), where we held that “if a sentencing court applies a
§ 3A1.4 terrorism enhancement on the ground that the defendant’s offense was
calculated to retaliate against government conduct, the conduct that the defendant
retaliates against must objectively be government conduct.” Varnell’s argument,
however, like this court’s holding in Ansberry, is limited to the so-called
retaliation prong of § 2332(b)(g)(5). His reply brief specifically states: “[I]n
light of the Court’s ruling in Ansberry, to the extent the district court’s decision
is based on the ‘retaliation’ prong of § 2332b(g)(5), Appellant requests the
district court be required to make specific findings as to: 1) what conduct
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Appellant was retaliating against, and 2) whether that conduct is objectively
governmental.” Varnell makes no assertion the holding in Ansberry should be
extended to the remaining provisions of § 2332b(g)(5) and has cited no precedent
from this court or any other so extending Ansberry.
Even if we were to conclude that application of the terrorism enhancement
on the grounds of retaliation could not be upheld under Ansberry because there
was inadequate evidence or findings as to retaliation, the district court did not
solely rely on the retaliation prong to apply this enhancement. The record
contains ample evidence showing the bombing was “calculated to influence or
affect the conduct of government by intimidation or coercion”—the provisions of
§ 2332b(g)(5) not addressed in Ansberry. For example, in September 2016, well
before the FBI initiated its investigation, Varnell told Elisens: “If I could vote,
I’d vote Trump. This country needs a revolution and the government needs to be
weakened to give the people the courage to do it.” Later in 2016, he told Elisens
he was “out for blood” and was “going after government officials” once “militias
start getting formed.” On the same day, Varnell wrote to Elisens: “I finally have
a chance to do something about how things are, I plan to do as much as I can.
I’ve been reading about the best places to find stuff to make bombs.” The next
day, Varnell wrote: “When I’m able I’m going to do some Tyler Durden 3 shit.
3
At trial, the government’s witness testified that Tyler Durden is a fictional
(continued...)
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The government is going to fucking burn with those who stand with it.” On May
9, 2017, Varnell sent Elisens a message stating: “Hillary [Clinton] may not have
won but big monopolies need to go down still. I don’t have hope for trump but
he’s already fucking shit up bad” and another stating: “Fuck trump. Fuck
monopolies. Shit needs to burn.” When Varnell and Elisens were discussing
possible targets Varnell stated: “Well we’re doing this in the name of freedom.
So whichever locations that would hurt the government the worst.” On June 26,
2017, Varnell met with Williams and indicated it was important that the federal
government be connected to the target location in some manner. He told
Williams he wanted to do something that would “somehow cripple the
government . . . and send[] a message that says, ‘You are a target.’”
Considered as a whole, this evidence shows Varnell’s intent was “to
influence or affect the conduct of government by intimidation or coercion,” 18
U.S.C. § 2332b(g)(5). Thus, there was no error in the application of the twelve-
level terrorism enhancement. 4
3
(...continued)
character from the movie, Fight Club. The character is involved in bombing
buildings.
4
Varnell raises several additional challenges to his sentence in his opening
appellate brief. We consider them even though the government argues they are
waived. First, he alleges procedural error in the district court’s failure to consider
his mental health as grounds for departure pursuant to USSG § 5H1.3 and in the
court’s failure to consider sentencing disparities. See United States v. Lente, 759
F.3d 1149, 1153 (10th Cir. 2014) (Lente III). As to Varnell’s request for a
(continued...)
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Appellate Case: 20-6040 Document: 010110617937 Date Filed: 12/13/2021 Page: 20
IV. Conclusion
Varnell’s convictions and sentence are affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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departure, the district court, in fact, ruled on the request, concluding one was not
warranted. This denial is not reviewable. See United States v. Angel-Guzman,
506 F.3d 1007, 1017-18 (10th Cir. 2007). As to the district court’s consideration
of sentencing disparities, this court has held that a sentencing court “must provide
only a general statement of its reasons, and need not explicitly refer to either the
§ 3553(a) factors or respond to every argument for leniency that it rejects in
arriving at a reasonable sentence” unless the sentence imposed is “above the
applicable Guidelines range.” United States v. Lente, 647 F.3d 1021, 1034-35
(10th Cir. 2011) (Lente II) (quotation omitted). Here, the district court varied
downward when it imposed a 300-month sentence and Varnell has not identified
any precedent requiring a district court to provide more than a general statement
of reasons when it imposes a below-guidelines sentence.
Finally, Varnell argues his 300-month sentence is substantively
unreasonable. There is, however, a “rebuttable presumption of reasonableness to
a below-guideline sentence challenged by the defendant as unreasonably harsh.”
United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011). In light of the
district court’s detailed explanation of how it arrived at Varnell’s below-
guidelines sentence, the cursory argument in Varnell’s appellate brief is
insufficient to rebut the presumption of reasonableness applicable to his sentence.
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