United States v. Rossi Adams, II ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-3761
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United States of America
Plaintiff - Appellee
v.
Rossi Lorathio Adams, II, also known as Rossi Adams, also known as Polo
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: January 13, 2021
Filed: April 30, 2021
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Before GRUENDER, BENTON, and STRAS, Circuit Judges.
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GRUENDER, Circuit Judge.
Rossi Lorathio Adams, II was tried and convicted of conspiracy to interfere
with commerce by threats and violence, see 18 U.S.C. § 1951, and he was sentenced
to 168 months’ imprisonment. On appeal, he challenges the district court’s denial
of his Batson objection, its admission of certain evidence, its orders requiring him
to pay certain costs and attorney fees, and its calculation of his advisory sentencing
guidelines range. We affirm except for that part of the district court’s order taxing
costs for grand jury witnesses, which we reverse.
I.
Adams was an internet entrepreneur and social-media influencer. Around
2015, Adams founded State Snaps, LLC, which he operated on various social-media
platforms including Snapchat, Instagram, and Twitter. On these platforms, State
Snaps displayed content submitted by its social-media followers, which often
consisted of explicit photographs and videos. In their images and videos, State
Snaps’ followers began including the phrase “Do It For State,” which went “viral.”
To further his business, Adams sought to acquire the doitforstate.com internet
domain and “doitforstate” trademark. Through internet-domain registrars such as
GoDaddy.com, individuals may register, buy, sell, and transfer internet domains.
The registration of a domain name grants the holder an exclusive, transferable right
to own a particular internet address. After determining that Ethan Deyo (“Ethan”)
already owned the doitforstate.com internet domain, Adams arrived unannounced at
Ethan’s home in Cedar Rapids, Iowa, and asked to buy it. Ethan did not sell him the
domain at that time but indicated he would follow up.
Adams also learned that Brandon Miller, an acquaintance of Ethan, was using
a “DoItForState” hashtag to promote concerts and other events around the country.
Upon learning of Miller’s use of the hashtag, Adams contacted Miller by text
message and insisted that he stop using it. When Miller refused, Adams sent Miller
a text message containing gun emojis.
Subsequently, Ethan, his brother Chris Deyo (“Chris”), and Miller met with
Adams at a local restaurant to discuss a partnership and sale of the doitforstate.com
domain, but the negotiations were unsuccessful. Afterward, Adams repeatedly
returned unannounced to Ethan’s home, trying to convince Ethan to sell him the
domain name, but Adams was repeatedly rebuffed.
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Eventually, Adams recruited his cousin, Sherman Hopkins, Jr., to break into
Ethan’s home and force Ethan to transfer the doitforstate.com domain to Adams.
Hopkins was a homeless felon with a lengthy criminal history that included at least
one violent crime.
Adams drove Hopkins to Ethan’s neighborhood several times, showing
Hopkins where Ethan lived and conducting surveillance. Then, on June 21, 2017,
Adams picked up Hopkins and dropped him off behind Ethan’s residence. Hopkins
was armed with a taser, which Adams provided, and a firearm, which Hopkins
provided but which he displayed in Adams’s presence in the car. Hopkins also
carried a demand note that Adams had provided, which described how to transfer
the domain to Adams’s GoDaddy account. Adams planned to wait at a nearby
Walgreens while Hopkins forced Ethan to transfer the doitforstate.com domain name
to Adams, and once the transfer was confirmed, Adams would return to pick up
Hopkins.
After being dropped off, Hopkins entered Ethan’s residence, found and
confronted Ethan, forcibly moved him to his home office, ordered him to turn on his
computer, and showed him the demand note. While Ethan attempted the transfer,
Hopkins tased him several times and struck him repeatedly with the firearm. As the
transfer was processing, Hopkins cocked his firearm and threatened to “blow
[Ethan’s] . . . head off” if the transfer was not done correctly. Ethan then tried to
wrestle the firearm away from Hopkins, at which point it discharged and shot Ethan
in the right leg. Ethan eventually gained control over the weapon and called 911.
After medical personnel arrived, Ethan declined pain medication, stating that he was
“fine,” and he said he did not wish to go to the hospital. But he eventually agreed to
go after the medical personnel encouraged him to do so. At the hospital, he was
treated for the gunshot wound in his right leg and a laceration above his left eye. He
was discharged after approximately two and a half hours.
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The next day, Adams called GoDaddy several times to ask for assistance with
his account (the same account indicated on the demand note), indicating that he was
supposed to be getting a domain transferred to his account from another GoDaddy
customer but did not see that the domain transfer had occurred. Some time later,
investigators examined the demand note and found Adams’s left palm print on it.
A grand jury returned a one-count indictment against Adams, charging him
with conspiracy to interfere with commerce by threats and violence. See 18 U.S.C.
§ 1951. During jury selection, the Government used a peremptory strike against the
only black prospective juror. Adams raised a Batson objection to this, which the
district court rejected. During trial, the district court admitted over Adams’s
objection Miller’s testimony about a video in which Adams told his followers to
send pictures to Miller’s phone, which Miller alleged caused his phone to “crash[].”
After a four-day trial, the jury found Adams guilty. At sentencing, the district
court applied a seven-level increase to Adams’s offense level pursuant to U.S.S.G.
§ 2B3.2(b)(3)(A)(i) because the offense involved discharge of a firearm; a four-level
increase pursuant to § 2B3.2(b)(4)(B) because the offense resulted in a victim’s
serious bodily injury; and a two-level increase pursuant to § 2B3.2(b)(1) because the
offense involved an express or implied threat of death, bodily injury, or kidnapping.
The district court then determined that Adams had a total offense level of 35 and a
criminal-history category of I, yielding an advisory sentencing guidelines range of
168 to 210 months’ imprisonment. It ultimately sentenced Adams to 168 months’
imprisonment. The court also found that Adams had earned a significant amount of
money since committing the crime and therefore ordered Adams to pay $22,000 in
court-appointed attorney fees and $3,957.45 in prosecution costs.
Adams appeals, challenging the district court’s denial of his Batson objection,
its admission of Miller’s testimony, its order requiring him to pay certain prosecution
costs, its order requiring him to pay $22,000 in attorney fees, and its calculation of
his offense level.
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II.
Adams first claims that he is entitled to a new trial because the Government
violated Batson v. Kentucky, 476 U.S. 79 (1986), by striking the only black
prospective juror. Adams argues that the district court clearly erred in finding that
the Government did not purposely discriminate against the black prospective juror.
He also contends that the district court failed to complete the third step of the Batson
analysis and failed to determine whether the prosecutor’s explanation of the strike
was reasonable or improbable, which he argues is required under Miller-El v.
Cockrell, 537 U.S. 322 (2003). We review for clear error the district court’s finding
that the Government’s peremptory strike of a black prospective juror was not
“motivated in substantial part by discriminatory intent.” Flowers v. Mississippi, 588
U.S. ---, 139 S. Ct. 2228, 2244 (2019). Because Adams did not raise before the
district court his argument that the district court failed to complete the third step of
the Batson analysis or his argument regarding Miller-El, we review these claims for
plain error. See Hopson v. Frederickson, 961 F.2d 1374, 1377-78 (8th Cir. 1992).
The Equal Protection Clause of the Fourteenth Amendment prohibits striking
a juror when the strike is “motivated in substantial part by discriminatory intent.”
Flowers, 139 S. Ct. at 2238, 2244. Batson requires a three-step, burden-shifting
analysis to evaluate a defendant’s objection to the strike of a juror based on race.
United States v. Jones, 245 F.3d 990, 992 (8th Cir. 2001). First, the opponent of a
peremptory strike must make a prima facie case of racial discrimination. Id. Second,
if the prima facie case is made, the burden of production shifts to the proponent of
the strike, who must offer a race-neutral explanation. Id. Third, if a race-neutral
explanation is presented, the district court must determine whether the opponent of
the strike has proven purposeful racial discrimination, typically by demonstrating
that the government’s reasons are pretextual. Id. at 992-93.
Only one member of the jury venire was black. The Government used its first
peremptory strike to remove that prospective juror, which Adams objected to under
Batson. The Government then provided four reasons for striking the prospective
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juror: (1) he had a recent conviction for marijuana possession; (2) he was
unemployed; (3) he lived with his parents; and (4) when questioned about prior jury
service mentioned on his jury questionnaire, he explained that he did not actually
serve on the jury but had been dismissed. After Adams explained his dispute with
the Government’s rationale, the district court overruled the Batson objection, finding
that the Government’s reasons for striking the juror were race-neutral and that
Adams had not shown these reasons were pretextual.
Adams argues that this was clear error. He claims that the Government’s
proffered reasons for striking the black prospective juror were pretextual because
they were unreasonable, because white prospective jurors were treated differently,
and because two of the Government’s four proffered reasons were factually
incorrect.
In determining whether the proffered reason for a strike is the actual reason or
a pretext for race, we often look to whether jurors of other races with the same
characteristics were struck. See Flowers, 139 S. Ct. at 2235; Devoil-El v. Groose,
160 F.3d 1184, 1187 (8th Cir. 1998). We also consider whether we previously “have
found similar reasons to be sufficiently race-neutral to withstand a Batson
challenge.” Devoil-El, 160 F.3d at 1186-87. Here, it is undisputed that two of the
Government’s four reasons for striking the black juror were factually correct: the
juror’s prior conviction for marijuana possession and his unemployed status. Adams
does not claim that any white prospective juror both had a prior conviction and was
unemployed. See id. at 1187 (finding no pretext where “the combination of
characteristics was different in the non-stricken venirepersons” than in the stricken
venirepersons); United States v. Baker, 205 F.3d 1347, 1999 WL 1144835, at *1 (8th
Cir. 1999) (per curiam) (unpublished table decision) (finding no pretext when a
“black venireperson was removed for a combination of reasons not attributable to
any of the nonchallenged venirepersons”). Additionally, we have previously found
similar reasons to be sufficiently race-neutral to withstand a Batson challenge. See
Devoil-El, 160 F.3d at 1186-87 (upholding strike based in part on unemployed
status); United States v. Wilcox, 487 F.3d 1163, 1170 (8th Cir. 2007) (upholding
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strike based on prior criminal conviction). Thus, we conclude that the district court
did not clearly err in finding that the Government’s reasons were not pretextual.
Second, Adams argues that the district court plainly erred because it did not
conduct the third step of the Batson analysis and, even if it did, it erred by failing to
state whether the prosecutor’s explanation of the strike was reasonable or
improbable, which he claims is required by Miller-El, 537 U.S. at 339. But Miller-
El does not impose such a requirement. Rather, it speaks to what a court may
consider in determining whether a defendant “has proved purposeful discrimination
at step three” of the Batson analysis. Id. at 338-39. Though Miller-El explains that
a prosecutor’s credibility may be measured by his “demeanor,” by “how reasonable”
or “how improbable” his explanations are, and “whether [his] proffered rationale has
some basis in accepted trial strategy,” it does not require a court to make explicitly
these factual findings. See id. at 339. Indeed, we do not even require district courts
to make an explicit factual finding that no discrimination has been shown because
the denial of a Batson objection “is itself a finding at Batson’s third step that the
defendant failed to carry his burden of establishing . . . purposeful discrimination.”
Edwards v. Roper, 688 F.3d 449, 457 (8th Cir. 2012) (brackets omitted). Here, the
district court found that the Government’s reasons were not pretextual and denied
the Batson objection. Thus, the district court did not plainly err in failing to address
the third step of the Batson analysis and did not plainly err by failing to make
additional, more specific findings on the record.
III.
Next, Adams argues that the district court prejudicially abused its discretion
by admitting testimony from Miller that Adams alleges is hearsay. “We review a
district court’s evidentiary decisions under an abuse of discretion standard, but even
if the district court erred in admitting the evidence, we will not reverse if the
admission of the evidence was harmless.” United States v. Walker, 393 F.3d 842,
848 (8th Cir. 2005) (internal quotation marks, brackets, and footnote omitted); see
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also Fed. R. Crim. P. 52(a). Here, we need not reach whether the admitted testimony
was inadmissible hearsay because its admission was harmless.
At trial, the Government called Miller as a witness. Miller is an event
promoter who was using “Do It For State” as a hashtag in his promotional materials.
In March 2015, Adams contacted Miller and asked him to stop using the hashtag,
but Miller continued to use it. At trial, Miller testified over Adams’s objection that
(1) after he continued using the hashtag, he received “like a thousand messages
through [his] phone” from Adams’s social-media followers, which “crashed” his
phone, and (2) Adams had placed a video on Adams’s social-media account asking
his followers to send such messages to Miller.
“An evidentiary error is harmless when, after reviewing the entire record, we
determine that the substantial rights of the defendant were unaffected, and that the
error did not influence or had only a slight influence on the verdict.” United States
v. Love, 521 F.3d 1007, 1009 (8th Cir. 2008). Here, admission of this testimony did
not affect the verdict because the testimony concerned a collateral issue. See Ball v.
Wyrick, 547 F.2d 78, 80 (8th Cir. 1977). Adams’s conviction was for conspiring to
force Ethan to transfer the doitforstate.com domain to Adams, not for his statements
toward Miller. There was overwhelming evidence of Adams’s role in Hopkins’s
violent attempt to force Ethan to transfer the domain to Adams. Not only did
Hopkins testify that Adams was the mastermind behind the scheme, but Adams’s
left palm print was found on the demand note. In addition, the day after the home
invasion, Adams called GoDaddy several times and made statements implicating his
involvement in the home invasion. Because there was overwhelming evidence that
Adams committed the crime of conspiracy to interfere with commerce by threats and
violence, Miller’s testimony regarding this collateral issue did not affect Adams’s
substantial rights and did not have more than a slight influence on the verdict.
Accordingly, any error was harmless.
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IV.
Adams next argues that the district court wrongly ordered him to pay
prosecution costs that included the costs of witnesses who testified before the grand
jury and the costs related to a Government witness’s attendance at trial when that
witness did not testify. We review an award of costs for an abuse of discretion.
United States v. Hiland, 909 F.2d 1114, 1142 (8th Cir. 1990). However, “[a] district
court by definition abuses its discretion when it makes an error of law.” Koon v.
United States, 518 U.S. 81, 100 (1996).
“Under 28 U.S.C. § 1918(b), the district court has the discretionary authority
to tax the ‘costs of prosecution’ against the defendant in any non-capital case.”
Hiland, 909 F.2d at 1141 (footnote omitted). “Absent explicit statutory or
contractual authorization to the contrary, federal district courts may tax as costs only
those expenses listed in [28 U.S.C.] § 1920.” Id. at 1142.
Adams first argues that the district court abused its discretion by assessing
costs for witnesses who testified before the grand jury because those costs are not
taxable against him. We agree. Section 1920 “does not include the costs of
investigation leading to indictment.” Id.; see also Biggerstaff v. United States, 260
F. 926, 927 (8th Cir. 1919) (suggesting that “prosecution” does not begin until the
grand jury returns an indictment because, “[u]ntil [then,] there is no case or cause
against the accused to be prosecuted”). These costs were not “costs of prosecution”
and thus were not taxable against Adams, so we reverse the part of the district court’s
order imposing them.
Adams also argues that the district court abused its discretion in assessing
costs for witness K.G., who attended but did not testify at trial. We disagree.
Generally, “in order for fees to be taxable for witnesses who appear voluntarily and
who are not called to testify, it must be shown that their testimony is material.”
Spiritwood Grain Co. v. N. Pac. Ry. Co., 179 F.2d 338, 344 (8th Cir. 1950). Because
they do not testify, “there is a rebuttable presumption that their testimony is not
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material.” Id. “The presumption is overcome, however, if it appears that an order
of court or other circumstance rendered their testimony unnecessary.” Id.; see also
Stanley v. Cottrell, Inc., 784 F.3d 454, 467 (8th Cir. 2015).
K.G. was a GoDaddy employee whose testimony the Government needed in
order to lay the foundation for the admission of certain GoDaddy business records.
Before trial, Adams’s counsel agreed to stipulate to the admissibility of the GoDaddy
business records on the condition that the Government call K.G. as a witness so that
he could cross-examine her. Thus, K.G.’s testimony was material. The reason that
K.G. did not testify was because, upon Adams’s request, the Government agreed to
allow Adams to put on a witness during the Government’s case-in-chief, which gave
the Government less time to present the witnesses it intended to present that day.
When it became clear that there would no longer be enough time for the Government
to call K.G. that day, the Government told the district court that it would allow K.G.
to leave, and Adams did not object. The Government’s attempted accommodation
of Adams’s out-of-order witness and Adams’s failure to object to the Government’s
allowing K.G. to leave constituted a “circumstance [that] rendered [K.G.’s]
testimony unnecessary.” See Spiritwood, 179 F.2d at 344. Therefore, the district
court did not abuse its discretion in assessing witness costs for K.G.
V.
Adams also argues that the district court erred in ordering him to reimburse
the government $22,000 in attorney fees (a little less than half of the total attorney
fees incurred on his behalf) after determining that Adams was able to pay for his
court-appointed attorney. Adams asserts that, under 18 U.S.C. § 3006A(d)(2), the
maximum amount a court-appointed attorney could claim in fees at the time of his
trial was $11,500. This argument presents a question of statutory interpretation,
which we consider de novo. See Lochridge v. Lindsey Mgmt. Co., 824 F.3d 780, 782
(8th Cir. 2016).
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District courts must have in place a plan for “furnishing representation for any
person financially unable to obtain adequate representation.” 18 U.S.C. § 3006A(a).
“A person for whom counsel is appointed shall be represented at every stage of the
proceedings,” but “[i]f at any time after the appointment of counsel . . . the court
finds that the person is financially able to obtain counsel or to make partial payment
for the representation, it may terminate the appointment of counsel or authorize
payment as provided in [§ 3006A(f)], as the interests of justice may dictate.” Id.
§ 3006A(c). In turn, § 3006A(f) provides that “[w]henever . . . the court finds that
funds are available for payment from or on behalf of a person furnished
representation, it may authorize or direct that such funds be paid to the appointed
attorney . . . or to the court . . . as a reimbursement.”
In this case, the district court found that Adams had the financial resources to
reimburse the government for part of the costs of his court-appointed attorney.
Adams does not dispute this finding, but he argues that the amount he must
reimburse is capped by § 3006A(d)(2). His reliance on § 3006A(d)(2) is misplaced,
however, as that section does not limit how much a nonindigent defendant such as
Adams must reimburse the government for his own defense. Nothing in § 3006A(c)
or (f), which apply here and permit a court to order reimbursement, limits such
reimbursement to the maximum amount referenced in § 3006A(d)(2). See, e.g.,
United States v. Lefkowitz, 125 F.3d 608, 621 (8th Cir. 1997) (upholding a district
court order that a defendant reimburse the government $316,693.70 for the costs of
his defense because “[s]uch an order is expressly authorized by 18 U.S.C.
§ 3006A(f)”). In fact, the court itself may, in some circumstances, award attorney
fees beyond the maximum amounts described in § 3006A(d)(1)-(2). See 18 U.S.C.
§ 3006A(d)(3) (permitting the court to waive the maximum amounts in
§ 3006A(d)(1)-(2) for extended or complex representation). The statute does not
limit reimbursement of attorney fees by a nonindigent defendant. Id. § 3006A(c),
(f); see also Lefkowitz, 125 F.3d at 621; United States v. Konrad, 730 F.3d 343, 351-
52 (3d Cir. 2013) (upholding a district court’s order that a defendant pay the costs
of his defense because he could afford it and refusing to limit reimbursement to the
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“court-appointed counsel” rates). Therefore, we affirm the district court’s
assessment of attorney fees.
VI.
Finally, Adams claims that the district court procedurally erred in imposing
offense-level increases under U.S.S.G. § 2B3.2(b)(3)(A)(i), (4)(B), and (1) when
calculating his total offense level. “In reviewing a sentence for significant
procedural error, we review a district court’s factual findings for clear error and its
interpretation and application of the guidelines de novo.” United States v. Marshall,
891 F.3d 716, 719 (8th Cir. 2018) (per curiam).
A.
Section 2B3.2(b)(3)(A)(i) authorizes a seven-level increase to a defendant’s
offense level “[i]f a firearm was discharged” as part of the offense. “[I]n the case of
a jointly undertaken criminal activity,” the court may consider “all acts and
omissions of others that were . . . reasonably foreseeable in connection with that
criminal activity” in calculating the defendant’s sentence. See § 1B1.3(a)(1)(B)(iii).
Here, the district court imposed a seven-level increase because it found that Hopkins
discharged a firearm during the course of the offense and that this was reasonably
foreseeable to Adams. Adams argues that Hopkins’s discharge of the firearm was
not reasonably foreseeable to him.
“Relevant to a determination of reasonable foreseeability is whether or to what
extent a defendant benefitted from his co-conspirator’s activities.” United States v.
Flores, 73 F.3d 826, 833 (8th Cir. 1996). “An additional relevant factor is whether
the defendant demonstrated a substantial level of commitment to the conspiracy.”
Id. The district court found both factors present here. As it found, Hopkins entered
Ethan’s home at Adams’s instruction to force Ethan to transfer the doitforstate.com
domain name to Adams. It found that Adams’s attempts to obtain the domain name
“increased in vehemency” over time and that he was the orchestrator of the offense.
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Additionally, the district court found that Adams was aware of Hopkins’s violent
criminal history, that he saw Hopkins with the firearm before he entered Ethan’s
home, and that he “intended” violence be used to force Ethan to comply. The district
court relied on these facts to find that Hopkins’s discharge of the firearm was
reasonably foreseeable to Adams.
Each of these facts finds ample support in the trial record, and the district court
did not clearly err in finding them. In light of these facts, the district court did not
err in concluding that Hopkins’s discharge of the firearm was reasonably foreseeable
so as to trigger the seven-level increase under § 2B3.2(b)(3)(A)(i). See, e.g., § 1B1.3
cmt. n.4(B)(i) (stating that a “getaway driver in an armed bank robbery” would be
responsible for an assault on a bank teller because the assault was “within the scope
and in furtherance of the jointly undertaken criminal activity (the robbery), and was
reasonably foreseeable in connection with that criminal activity (given the nature of
the offense)”).1
B.
Section 2B3.2(b)(4)(B) authorizes a four-level increase to the defendant’s
offense level if a victim of the offense sustained “serious bodily injury.” A “serious
bodily injury” is 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.”
§ 1B1.1, cmt. n.1(M). The district court imposed this four-level increase because it
found that Ethan’s gunshot wound was a “serious bodily injury.” Adams disputes
this conclusion.
We agree with the district court that Ethan’s gunshot wound constitutes a
“serious bodily injury” within the meaning of § 2B3.2(b)(4)(B). This injury required
1
The grounds for Adams’s two other increases discussed below—that a victim
sustained serious bodily injury and that the offense involved a threat of death, bodily
injury, or kidnapping—were reasonably foreseeable to Adams for the same reasons.
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medical intervention—Ethan was hospitalized for approximately two and a half
hours while being treated, including receiving stitches. Adams counters that this
hospital stay was not long enough to constitute “hospitalization.” Even if Adams is
correct, “hospitalization” is only one example of “medical intervention.” If this
hospital stay was too short to constitute “hospitalization,” the gunshot wound still
required medical intervention. Therefore, it constitutes a “serious bodily injury”
under § 2B3.2(b)(4)(B). See, e.g., United States v. Mason, 5 F.3d 532, 1993 WL
335764, at *1 (8th Cir. Sept. 7, 1993) (per curiam) (unpublished table decision)
(concluding that a wound to the victim’s head from being struck with one of the
defendant’s revolvers was a “serious bodily injury” under the guidelines, even
though the victim initially refused medical attention and only went to the emergency
room the next morning, because the wound “was ‘quite deep,’ was bleeding
significantly, and required stitches”). The district court thus did not err in
concluding Ethan’s gunshot wound was a “serious bodily injury,” triggering a four-
level increase under § 2B3.2(b)(4)(B).
C.
Lastly, Adams claims the district court erred when it imposed a two-level
increase under § 2B3.2(b)(1) for committing an “offense involv[ing] an express or
implied threat of death, bodily injury, or kidnapping” because this two-level increase
is also an element of the offense and therefore “baked in” to the base offense level.
Adams’s contention is essentially a double-counting objection. “Double-
counting at sentencing occurs when one part of the Guidelines is applied to increase
a defendant’s punishment on account of a kind of harm that has already been fully
accounted for by application of another part of the Guidelines.” United States v.
Bryant, 913 F.3d 783, 787 (8th Cir. 2019) (internal quotation marks omitted). “[A]
court impermissibly double-counts when precisely the same aspect of a defendant’s
conduct factors into his sentence in two separate ways” unless “the Sentencing
Commission so intended and each guideline section furthers an independent purpose
of sentencing.” Id. (internal quotation marks omitted).
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Here, no double counting occurred because the increase takes account of a
harm that is not fully accounted for by the base offense in the sentencing guidelines
or the statute of conviction. The base offense, U.S.S.G. § 2B3.2, does not require
threats of death, bodily injury, or kidnapping. See U.S.S.G. § 2B3.2 cmt. n.2
(explaining that this guideline applies to threats that are not threats of physical injury
to a person); see also United States v. Williams, 693 F.3d 1067, 1074 (9th Cir. 2012)
(holding that the base offense does not require the behavior necessary to qualify for
the increase). Neither does the statute of conviction. See 18 U.S.C. § 1951(a), (b)(2)
(prohibiting, among other things, extortion, which includes “obtaining the property
of another . . . by wrongful use of . . . fear”); see also United States v. Jones, 997
F.2d 967, 969 (1st Cir. 1993) (holding that 18 U.S.C. § 1951 “criminalizes a wide
array of fear-producing threats” and does not require a “threat of bodily harm”). But
the increase in § 2B3.2(b)(1) does. Therefore, no double counting occurred. See
Williams, 693 F.3d at 1074 (holding that there is no double counting when a court
applies the base offense under § 2B3.2 and the increase under § 2B3.2(b)(1) because
the base offense does not require the behavior necessary to qualify for the increase);
Jones, 997 F.2d at 969 (holding that the district court did not err in applying the
increase under § 2B3.2(b)(1) when the same threat factored into the base offense
level and 18 U.S.C. § 1951 was the statute of conviction). Therefore, the district
court did not err by applying the increase in § 2B3.2(b)(1).2
2
To the extent Adams claims that § 3A1.3’s cmt. n.2 prevents a court from
imposing both the base offense level in § 2B3.2(a) and the increase in § 2B3.2(b)(1),
his argument has no merit, as § 3A1.3’s cmt. n.2 does not apply to § 2B3.2. In
addition, Adams’s claim that United States v. Werlinger, 894 F.2d 1015 (8th Cir.
1990), compels a different result is incorrect. Werlinger held that when the basis for
one increase was the same as the basis for another, it was double counting to apply
both. Id. at 1016-19. Adams argues that this implies that when the basis for an
increase is also necessary for the base offense, it is double counting to apply the
increase. Even if Adams is right, however, the basis for the § 2B3.2(b)(1) increase
that the district court applied here is not necessary for Adams’s base offense as we
have discussed.
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VII.
For the foregoing reasons, we reverse that portion of the district court’s order
taxing costs for grand jury witnesses, but as to every other issue Adams raises on
appeal, we affirm.
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