United States v. Davi Bailey
931 F.3d 558
| 6th Cir. | 2019Background
- Bailey attended trial where victim K.P. testified against Michael Clayton (her then-boyfriend). After testimony, Bailey threatened K.P. and another victim. Four days after the guilty verdict, Bailey sent Facebook Messenger threats to K.P.’s sister in retaliation for K.P.’s testimony.
- Bailey was indicted on witness-retaliation counts and pleaded guilty to one count charging threats in retaliation for K.P.’s testimony under 18 U.S.C. § 1513 and related statutes.
- The PSR recommended applying U.S.S.G. § 2J1.2(c)(1)’s cross reference to § 2X3.1 (Accessory After the Fact), which yielded an offense level capped at 30 (Guidelines range 78–97 months).
- The PSR alternatively recommended an 8-level enhancement under § 2J1.2(b)(1)(B) for threatening physical injury to obstruct justice, which would have produced a lower offense level; the cross reference controlled because it produced a higher level.
- Bailey objected, arguing the cross reference applies only to successful obstruction (not attempts), that her threats came after trial, and that she had no role in the underlying offense; the district court overruled objections and sentenced her to 78 months (bottom of Guidelines).
- On appeal, Bailey challenged procedural and substantive reasonableness; the Sixth Circuit affirmed, holding the cross reference covers attempted obstruction and the sentence was reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether U.S.S.G. § 2J1.2(c)(1) cross reference applies to attempted obstruction | Bailey: cross reference applies only if obstruction succeeded; Clayton’s conviction shows it failed | Government: cross reference covers attempts and need not show success | Held: Cross reference applies to attempts; district court correctly applied it |
| Whether threats made after verdict but before sentencing fall outside "prosecution" | Bailey: prosecution had ended with verdict; cross reference inapplicable | Government: "prosecution" includes sentencing; victim testimony may still be relevant | Held: "Prosecution" includes sentencing stage; threats can obstruct sentencing testimony |
| Whether cross reference requires defendant’s involvement in underlying crime | Bailey: she had no role in Clayton’s offense, so cross reference improper | Government: §2J1.2(c) applies regardless of who committed underlying offense | Held: No requirement of involvement; cross reference appropriate even when offense committed by another |
| Whether sentence was substantively unreasonable given Guideline increase | Bailey: cross reference excessively punitive; district court overweighted deterrence | Government: within-Guidelines sentence justified by seriousness and deterrence | Held: Sentence presumptively reasonable; district court considered §3553(a) factors and did not abuse discretion |
Key Cases Cited
- United States v. Roche, 321 F.3d 607 (6th Cir.) (cross reference applies to attempts to obstruct justice)
- United States v. Kimble, 305 F.3d 480 (6th Cir.) (affirming cross reference where prosecution succeeded despite obstruction effort)
- United States v. Aragon, 983 F.2d 1306 (4th Cir.) (cross reference applies to attempts)
- United States v. Solofa, 745 F.3d 1226 (D.C. Cir.) (collecting cases holding cross reference covers attempts)
- Gall v. United States, 552 U.S. 38 (2007) (procedural and substantive reasonableness framework for sentencing)
- United States v. Parrish, 915 F.3d 1043 (6th Cir.) (placement of within-Guidelines sentence presumptively reasonable)