United States v. Rogers

17 F.4th 229

Opinion

United States Court of Appeals For the First Circuit

No. 20-2165

UNITED STATES OF AMERICA,

Appellee,

v.

JEREMY HUGH ROGERS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch and Barron, Circuit Judges, Burroughs, District Judge.

James M. Mason and Handelman & Mason LLC on brief for appellant. Donald E. Clark, Acting United States Attorney, and Noah Falk, Assistant United States Attorney, on brief for appellee.

November 4, 2021

 Of the District of Massachusetts, sitting by designation. BURROUGHS, District Judge. Jeremy Hugh Rogers pleaded

guilty to one count of unlawful possession of a firearm by a felon

in violation of 18 U.S.C. § 922(g)(1). The district court

sentenced Rogers to seventy-two months of incarceration. On

appeal, Rogers challenges his sentence, arguing that the district

court misapplied the Sentencing Guidelines when it imposed a

four-level offense increase under U.S. Sent'g Guidelines Manual

§ 2K2.1(b)(6)(B) and that the sentence was substantively

unreasonable. Finding that there was no Guidelines error and that

the sentence was substantively reasonable, we affirm.

I. Facts and Prior Proceedings

Because Rogers pleaded guilty, we draw the relevant

facts from the undisputed portions of the presentence

investigation report ("PSR") and the transcript of the sentencing

hearing. See United States v. Benoit, 975 F.3d 20, 21 (1st Cir.

2020)(citing United States v. Bermúdez-Meléndez, 827 F.3d 160, 162

(1st Cir. 2016)).

A. The Offense and Arrest

On August 3, 2019, twenty-two people were killed and

another twenty-four were injured during a mass shooting at a

Walmart store in El Paso, Texas. On August 12, 2019, less than

two weeks after the El Paso shooting, Rogers used one of his

Facebook accounts to send a video of himself to a fellow Facebook

user. In that video, a mask-clad Rogers loads a magazine into an

- 2 - AR-15 assault rifle and says "man I'm tired of this shit, I'm going

to fucking Walmart." That same day, Rogers sent another Facebook

user a different video of an AR-15, which he calls "Bella." In

that video, Rogers is heard asking "do you like my new Walmart

killer?" and saying that because he was bored, he had purchased

bullets and shotgun shells.

A few days later, on August 17, 2019, Rogers sent a

photograph of himself dressed in camouflage and holding a rifle to

a Facebook group "conversation." Along with the image, he posted

the text "[w]ho's with me?" The next day, Rogers posted another

image to Facebook that portrayed gloved hands holding an AR-15 and

depicted a person at the entrance of a Walmart store with the text

"Match begins in 2 [seconds]."1

On or around August 21, 2019, more than one of the

recipients of Rogers' Facebook posts reported them to law

enforcement, apparently concerned that Rogers would actually carry

out a shooting at a Walmart. In response, law enforcement

consulted with Walmart and decided that the Walmart store in

Thomaston, Maine, which was the closest to Rogers' last known

location, should be closed an hour early.

Rogers was arrested at his residence on August 22, 2019.

1At his November 19, 2020 sentencing hearing, Rogers asserted that the image, which he had downloaded from the internet, was actually from a video game and not an image of him.

- 3 - At a voluntary, post-arrest interview, Rogers said that the videos

and images were intended to be jokes, that he did not actually

plan to go to Walmart, and that he would always possess a gun,

regardless of his probation status. During the interview, Rogers

also discussed an incident where he had wanted to kill a person

who, in his view, had attempted to take his daughter away from

him.

Rogers was initially detained by Maine state

authorities. After his detention, the following statements were

found on the walls of his cell: "I AM a terrorist"; "Death I

Bring"; "The Walmart Terrorist was here!"; and "I love murder."

Rogers' cellmate also told his probation officer that he was

concerned that Rogers would act violently because Rogers had

expressed a desire to shoot people and obsessed over a video of a

mass shooting at a mosque in New Zealand.

B. The Plea and Sentencing

On February 20, 2020, Rogers pleaded guilty to one count

of being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). As part of the plea agreement, the parties

agreed to recommend a base offense level of twenty, with a

two-level offense enhancement under U.S. Sent'g Guidelines Manual

§ 2K2.1(b)(1)(A) and a three-level reduction for acceptance of

responsibility pursuant to U.S. Sent'g Guidelines Manual § 3E1.1.

In the PSR, the U.S. Probation officer agreed with the parties'

- 4 - recommendations but also applied a four-level increase under U.S.

Sent'g Guidelines Manual § 2K2.1(b)(6)(B) because Rogers

"possessed a firearm in connection with another felony offense."

Specifically, the Probation officer determined that a

preponderance of the evidence demonstrated that Rogers had

committed the offense of Terrorizing With A Dangerous Weapon in

violation of Maine law, Me. Rev. Stat. Ann. tit. 17-A, § 210(1)(A)-

(B).2 Maine's Terrorizing statute provides that:

A person is guilty of terrorizing if that person in fact communicates to any person a threat to commit or to cause to be committed a crime of violence dangerous to human life, against the person to whom the communication is made or another, and the natural and probable consequence of such a threat, whether or not such consequence in fact occurs, is: A. To place the person to whom the threat is communicated or the person threatened in reasonable fear that the crime will be committed[;] . . . . or B. To cause evacuation of a building, place of assembly or facility of public transport or to cause the occupants of a building to be moved to or required to remain in a designated secured area.

Me. Rev. Stat. Ann. tit. 17-A, § 210(1)(A)-(B)(2020).

In addition to the federal indictment, Rogers was also 2

charged in Maine state court on three felony counts: (1) Terrorizing under Me. Rev. Stat. Ann. tit. 17-A, § 210(1)(B); (2) Terrorizing With A Dangerous Weapon under Me. Rev. Stat. Ann. tit. 17-A, § 210(1)(A); and (3) Illegal Possession Of A Firearm under Me. Rev. Stat. Ann. tit. 15, § 393(1)(A-1). At the time of the sentencing hearing, these charges were still pending in state court, but it was understood that Rogers would plead guilty to some of the charges later that day.

- 5 - Rogers was sentenced on November 19, 2020. His objection

to the four-level increase under U.S. Sent'g Guidelines Manual

§ 2K2.1(b)(6)(B) was overruled by the district court, which found

that the increase applied because (1) the presence of a firearm in

the videos and images demonstrated how Rogers would carry out his

threats, so "the gun clearly [was] at the heart of the facilitation

of the underlying felony offense"; and (2) the videos and images

caused alarm or fear in others, as required by the Terrorizing

statute, because at least one recipient was concerned enough to

contact law enforcement and law enforcement closed the Thomaston

Walmart early. The district court ultimately calculated Rogers'

offense level as twenty-three, with a criminal history category of

II, and an advisory guideline sentencing range of fifty-one to

sixty-three months of incarceration.

After hearing from both parties, the district court

sentenced Rogers to an above-Guidelines sentence of seventy-two

months of incarceration. In reaching this sentence, the district

court stated that it had considered all the factors set forth in

18 U.S.C. § 3553(a) and noted that the "most important" factors

were "the nature and circumstances of the offense, the history,

personal characteristics and record of [Rogers], the seriousness

of the offense, the need for just punishment[,] and the need to

protect the public." The district court articulated its concerns

about Rogers' history of threats to others (including a principal

- 6 - and teacher), his problems managing his anger, his fascination

with firearms, and public safety.

II. Discussion

When reviewing sentencing challenges, "[w]e first

consider whether the sentence is procedurally reasonable, and then

consider whether it is substantively reasonable." United States

v. Hassan-Saleh-Mohamad, 930 F.3d 1, 6 (1st Cir. 2019) (quoting

United States v. Rodríguez-Reyes, 925 F.3d 558, 562-63 (1st Cir.

2019)).

A. Procedural Reasonableness

When reviewing the reasonableness of a sentencing

enhancement, "we review the district court's legal rulings anew,

its factfinding for clear error, and its application of the

guidelines to the case on a 'sliding scale' -- with the scrutiny

cranked up the more law-driven the court's decision is." United

States v. Matthews, 749 F.3d 99, 105 (1st Cir. 2014). "The clear

error standard requires 'a strong, unyielding belief that a mistake

has been made.'" United States v. Newton, 972 F.3d 18, 20 (1st

Cir. 2020) (quoting United States v. Oliveira, 907 F.3d 88, 92

(1st Cir. 2018)). "[T]he sentencing court's choice among rational

but competing inferences cannot be clearly erroneous." Matthews,

749 F.3d at 105.

Rogers' procedural reasonableness argument focuses on

the district court's application of the four-level offense

- 7 - increase under U.S. Sent'g Guidelines Manual § 2K2.1(b)(6)(B). In

relevant part, U.S. Sent'g Guidelines Manual § 2K2.1(b)(6)(B)

allows for a four-level offense increase "[i]f the defendant

. . . used or possessed any firearm or ammunition in connection

with another felony offense . . . ." U.S. Sent'g Guidelines Manual

§ 2K2.1(b)(6)(B) (U.S. Sent'g Comm'n 2018).

The enhancement applies, then, if the court finds that the government proved two things by a preponderance of the evidence: one, that the defendant committed another felony offense . . . and two, that he possessed a firearm in connection with that other offense—a phrase read broadly under our caselaw . . . .

Matthews, 749 F.3d at 105 (emphasis in original)(internal

quotation marks omitted). "Either direct or circumstantial

evidence will do, with the sentencing court free to draw

commonsense inferences from the evidence." Id.

Rogers first argues that the district court erred in

finding that his actions constituted a threat under Maine's

Terrorizing statute, Me. Rev. Stat. Ann. tit. 17-A, § 210(1),

because the videos and images were privately sent to his Facebook

friends and the content was not directed at a particular party.3

Considering the record as a whole, there is enough evidence to

3 When terrorizing conduct in violation of Me. Rev. Stat. Ann. tit. 17-A, § 210(1)(A) occurs "with the use of a dangerous weapon," as it did here, the offense qualifies as a Class C felony under Maine law. See Me. Rev. Stat. Ann. tit. 17-A, § 1604(5)(A)(2020); Me. Rev. Stat. Ann. tit. 17-A, § 210(1)(A)(2020).

- 8 - support the district court's finding that Rogers violated the

Terrorizing statute, and his contentions are therefore without

merit. By its plain language, the Terrorizing statute requires

only that "the natural and probable consequence" of the threat is

that "the person to whom the threat is communicated" is placed "in

reasonable fear that the crime will be committed." Id. § 210(1)(A)

(2020). Although Rogers asserts otherwise, the statute does not

require that the threats be directly communicated to the ultimate

victim. See State v. Michaud, 473 A.2d 399, 403–04 (Me. 1984)

(holding that an indictment for terrorizing under Me. Rev. Stat.

Ann. tit. 17-A, § 210(1) was sufficient when it alleged that the

natural and probable consequence of a death threat communicated to

a third party, and not the intended victim, was to place the third

party in "reasonable fear that said crime would be committed").

Here, at least one of the recipients of Rogers' Facebook

posts was concerned enough to contact law enforcement about them.

Law enforcement, in turn, informed Walmart about the posts, which

resulted in the Thomaston store closing early. Significantly,

these events all took place against the backdrop of a mass shooting

at a Walmart that had occurred just days before. Therefore, the

evidence supports the conclusion that the natural and probable

consequence of Rogers' actions was that the recipients would fear

that he would commit a violent act. Thus, the district court did

not err in finding that Rogers violated the Terrorizing statute.

- 9 - Rogers next argues that U.S. Sent'g Guidelines Manual

§ 2K2.1(b)(6)(B) was improperly applied because the evidence is

insufficient to establish a connection between his threats and a

firearm. We have no trouble concluding that the district court's

factual finding on this point was not clearly erroneous. As we

have previously held, "[t]he key question is whether a sufficient

nexus exists between the weapon and the [additional felony]. If

a firearm somehow aids or facilitates, or has the potential to aid

or facilitate, the commission of another offense, application of

[U.S. Sent'g Guidelines Manual § 2K2.1(b)(6)(B)] is warranted."

United States v. Paneto, 661 F.3d 709, 717 (1st Cir. 2011) (second

alteration in original) (citations and internal quotation marks

omitted). The record demonstrates that a firearm featured

prominently in each of the videos and images that Rogers shared on

Facebook. For example, in one video he loads the AR-15 and says

"I'm going to fucking Walmart." In another, he displays the AR-15

and asks "do you like my new Walmart killer?" These facts are

more than sufficient to support the finding that the firearm

magnified the threatening nature of Rogers' communications and

ultimately caused a recipient to reasonably fear that Rogers was

likely to commit a violent act. In other words, the firearm

facilitated and aided the terrorizing conduct. See id.

Accordingly, for the reasons described above, the

district court did not err in applying the four-level offense

- 10 - increase pursuant to U.S. Sent'g Guidelines Manual

§ 2K2.1(b)(6)(B).

B. Substantive Reasonableness

Challenges to the substantive reasonableness of a

sentence are reviewed for abuse of discretion. United States v.

Bruno-Campos, 978 F.3d 801, 808 (1st Cir. 2020) (citing

Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020)).

"A sentence is substantively reasonable if the district court

provided a 'plausible sentencing rationale and reached a

defensible result.'" United States v. Gomera-Rodríguez, 952 F.3d

15, 20 (1st Cir. 2020) (quoting United States v. Coffin, 946 F.3d

1, 8 (1st Cir. 2019)). When the district court imposes an

above-Guidelines sentence, "an adequate explanation is required."

Bruno-Campos, 978 F.3d at 809. Although "the greater the extent

of a variance, the more compelling the sentencing court's

justification must be," a sentence well beyond the guidelines range

may still be reasonable. United States v. Tanco-Pizarro, 892 F.3d

472, 484 (1st Cir. 2018) (quoting United States v. de Jesús, 831

F.3d 39, 43 (1st Cir. 2016)).

Rogers argues that his seventy-two-month sentence was

substantively unreasonable because the district court's rationale

for the above-Guidelines sentence focused on his terrorizing

activity, which was already accounted for in the U.S. Sent'g

Guidelines Manual § 2K2.1(b)(6)(B) analysis.

- 11 - We disagree. Rogers interprets the district court's

reasoning too narrowly. The district court explicitly stated the

reasons for its sentence, which went beyond the facts relevant to

Rogers' terrorizing conduct. As laid out above, see supra Section

I.B, the district court expressed serious concerns with Rogers'

troubling threats to others, including death threats, which

occurred before the terrorizing conduct considered in the U.S.

Sent'g Guidelines Manual § 2K2.1(b)(6)(B) analysis, as well as the

need to ensure the public's safety. Accordingly, the district

court's sentence is plausible, defensible, and substantively

reasonable.

III. Conclusion

For the reasons given, we find that the sentence imposed

was reasonable.

Affirmed.

- 12 -