United States v. Charles Adams, 598 F. App'x 425

ATF undercover investigation led to the identification and arrest of a confidential informant involved in a drug-trafficking case in Lexington, Kentucky.
On August 21, 2012, photos of the informant were posted on Facebook; Charles Adams posted multiple comments that included violent language and calls to "kill" or "bash" the informant.
Adams was charged under 18 U.S.C. § 1513(b)(2) for threatening to retaliate against a witness (a confidential informant).
Adams entered a written guilty plea admitting he posted the statements, that they included language threatening bodily harm, and that they were made with intent to retaliate; he waived appeals of the plea but reserved the right to appeal his sentence.
At sentencing the probation office and government sought an eight-level enhancement under U.S.S.G. § 2J1.2(b)(1)(B) for threats to cause physical injury to obstruct justice; the district court applied the enhancement but varied downward and imposed a 48-month sentence.
On appeal Adams argued the Facebook posts were constitutionally protected speech (not punishable threats); the Sixth Circuit held his guilty plea admitted the threatening nature and intent, so the First Amendment challenge and factual dispute were waived, and affirmed.

Issue	Plaintiff's Argument (Adams)	Defendant's Argument (Government)	Held
Whether the § 2J1.2(b)(1)(B) enhancement applies because the Facebook posts were punishable threats	Posts were hyperbolic, non-specific, political/social commentary or rap-culture expression protected by the First Amendment; not true threats	The plea and admissions concede the posts included language threatening bodily harm made with intent to retaliate, supporting the enhancement	Held: Waived by guilty plea—Adams admitted the threatening nature and intent, so enhancement application stands
Whether government had to prove at sentencing that posts were threats	Government must prove threat at sentencing	Adams argues burden remains despite plea	Held: No—by pleading guilty and admitting elements, Adams waived need for additional proof at sentencing
Whether Adams can assert First Amendment protection after admitting intent to threaten/retaliate	First Amendment protects his statements	Admission of intent to retaliate removes protection for threats	Held: Admission waived First Amendment defense; threats made with retaliatory intent are not protected
Whether a new double-counting challenge (raised in reply) can be considered on appeal	Double-counting unfairly increased offense level	Government had no opportunity to respond	Held: Not considered—issue was raised too late in reply brief and not properly presented below

United States v. Hockenberry, 730 F.3d 645 (6th Cir. 2013) (defendant may waive constitutional rights in plea agreement if knowing and voluntary)
United States v. Louchart, 680 F.3d 635 (6th Cir. 2012) (guilty plea encompasses factual and legal elements necessary for conviction)
United States v. Broce, 488 U.S. 563 (1989) (plea allocution bars later challenge to facts admitted in plea)
Shackelford v. Shirley, 948 F.2d 935 (5th Cir. 1991) (intent to retaliate removes speech from protected category)
United States v. Velasquez, 772 F.2d 1348 (7th Cir. 1985) (threats to retaliate are not political or social commentary)
United States v. Campbell, 279 F.3d 392 (6th Cir. 2002) (appellate rule against raising new issues in reply brief)
United States v. Crozier, 259 F.3d 503 (6th Cir. 2001) (same)