United States v. John Kennedy, 578 F. App'x 582

Kennedy was convicted at trial on several counts for manufacturing and possessing a destructive device near a hardware store and related firearm charges.
The central trial issue was whether the device placed at the Aco Hardware parking lot qualified as a destructive device under federal law.
Extensive evidence from Kennedy’s homes included bomb-making materials, manuals, diaries, and planning documents linking to the hardware store and a high school incident.
The defense argued the hardware-store device could have been a smoke device, not an explosive, and urged an affirmative-defense instruction.
The district court admitted non-probative evidence over objection; the court provided differing definitions for destructive device in parallel statutes and gave incomplete count-three instructions.
Kennedy was sentenced to 108 months, with a $20,000 fine, and the court later vacated the sentence to consider a downward variance due to double-counting concerns.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of other-acts evidence	Kennedy contends 404(b) evidence was non-probative and prejudicial.	United States argues the evidence showed intent/disposition and was admissible for multiple purposes.	Harmless error; evidence largely non-prejudicial overall.
Jury instructions accuracy	Kennedy claims count-three instruction misstates law and omits an affirmative defense.	Government argues error was harmless and instructions were substantially covered by other rule statements.	No reversible error; instructions were substantially covered and harmless.
Sentencing variance/double counting	Kennedy argues nonfrivolous variance based on double-counting of prior convictions; district court failed to explain.	Government contends variance issue was either not raised or would be improper to consider.	Sentence vacated and remanded for downward variance consideration.
Enhancement for possession in connection with another felony	Kennedy challenges application of § 2K2.1(b)(6)(B).	United States relies on planned jewelry-store robbery to justify enhancement.	District court's enhancement upheld.

United States v. Jenkins, 345 F.3d 928 (6th Cir. 2003) (three-step 404(b) admissibility framework)
United States v. Clay, 667 F.3d 689 (6th Cir. 2012) (de novo review of probative value; abuse of discretion for balancing)
United States v. Gibbs, 182 F.3d 408 (6th Cir. 1999) (harmless-error review for improperly admitted evidence)
Richardson v. Marsh, 481 U.S. 200 (1987) (limiting-use of testimony regarding past crimes)
Hedgpeth v. Pulido, 555 U.S. 57 (2008) (harmless-error standard for jury instruction defects)
United States v. Sassak, 881 F.2d 276 (6th Cir. 1989) (reversal only if instruction correct, not covered, and prejudicial)
United States v. Robertson, 309 F. App’x 918 (6th Cir. 2009) (downward variance-based double-counting argument require explanation)
United States v. Taylor, 648 F.3d 417 (6th Cir. 2011) (due deference to factual findings on 'in connection with' enhancement)
Fleener v. United States, 900 F.2d 914 (6th Cir. 1990) (acceptance of responsibility considerations elsewhere)