United States v. Bobby Kobito, 994 F.3d 696

Background

Defendant Bobby Kobito was indicted for knowingly possessing unregistered silencers (26 U.S.C. §§ 5861(d), 5871); search of his home recovered two oil-filter silencers.
FBI-directed confidential informant recorded multiple meetings in which Kobito identified federal buildings (including the Terry Sanford Federal Building), discussed shooting positions, planning, and using improvised silencers bought from auto parts stores.
Kobito sent a photo of the federal building and a manifesto titled “Patriots Against Tyrants,” expressed intent to “disrupt the plans,” and offered planning/training assistance though later told the informant to “part ways.”
Probation applied two Guidelines enhancements: a 12-level terrorism enhancement (USSG §3A1.4) — treating Kobito’s conduct as intended to promote a federal crime of terrorism — and a 4-level enhancement for possessing a firearm in connection with another felony (USSG §2K2.1(b)(6)(B)).
The enhancements produced a Guidelines range above the statutory maximum (capped at 120 months); the district court overruled objections, applied both enhancements, varied downward, and sentenced Kobito to 60 months.
On appeal Kobito argued the enhancements were invalid because the government couldn’t show the federal building was within the United States’ special maritime/territorial jurisdiction and his statements were mere hyperbole (not an attempt/conspiracy or true threats).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether USSG §3A1.4 (terrorism enhancement) applies when defendant could not be convicted of the underlying federal terrorism offense	Kobito: gov’t failed to prove the building was within special maritime/territorial jurisdiction and his statements were mere hyperbole, not an attempt/conspiracy	Gov’t: §3A1.4 applies where the offense was committed with intent to promote a federal crime of terrorism even if the defendant was not (and could not be) convicted of that crime	Held: §3A1.4 applies under its “intended to promote” prong; district court’s finding of intent by a preponderance was not clearly erroneous; enhancement proper
Whether the government had to prove the Terry Sanford Federal Building was within the United States’ special maritime and territorial jurisdiction for §3A1.4	Kobito: gov’t did not prove acceptance of federal jurisdiction over the building	Gov’t: proof unnecessary for the “intended to promote” prong; alternatively, jurisdiction could be judicially noticed	Held: Even under plain-error review, no error; court’s assumption was reasonable and judicial notice was likely; and proof of jurisdiction is not required for the “intended to promote” prong
Whether USSG §2K2.1(b)(6)(B) (possession of firearm in connection with another felony) was properly applied	Kobito: no qualifying predicate felony (attempt/conspiracy to violate §1363 or a true-threat offense); speech may be protected	Gov’t: silencers facilitated potential violation of §1363; enhancement thus applicable	Held: Court assumed possible error but found any error harmless because removing the enhancement would not alter the Guidelines sentence (range still capped by statutory maximum)
Standard of proof and review applicable to sentencing enhancements	Kobito: preserves challenge; some arguments unpreserved (e.g., jurisdiction)	Gov’t: enhancements are reviewed for preponderance; unpreserved arguments reviewed for plain error	Held: Sentencing-fact findings reviewed for clear error; unpreserved jurisdictional argument reviewed for plain error; government must prove enhancements by a preponderance

Key Cases Cited

Gall v. United States, 552 U.S. 38 (reasonableness standard for appellate review of sentences)
United States v. Ward, 972 F.3d 364 (4th Cir. 2020) (principles for interpreting Sentencing Guidelines)
United States v. Awan, 607 F.3d 306 (2d Cir. 2010) (interpreting §3A1.4 disjunctive prongs)
United States v. Graham, 275 F.3d 490 (6th Cir. 2001) (interpreting “intended to promote” prong of §3A1.4)
United States v. Mandhai, 375 F.3d 1243 (11th Cir. 2004) (defendant’s purpose to promote a terrorism crime triggers §3A1.4)
United States v. Benkahla, 530 F.3d 300 (4th Cir. 2008) (applying §3A1.4 where relevant conduct had purpose to promote terrorism)
United States v. Chandia, 675 F.3d 329 (4th Cir. 2012) (applying terrorism enhancement for convictions involving enumerated terrorism offenses)
United States v. Steffen, 741 F.3d 411 (4th Cir. 2013) (government must prove sentencing enhancements by a preponderance)
United States v. Hargrove, 701 F.3d 156 (4th Cir. 2012) (harmless-error approach to alleged sentencing errors)