United States v. Doggart

• Citation: 947 F.3d 879
• Decision Date: 15 January 2020
• Docket Number: No. 17-5813,17-5813
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert R. DOGGART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

947 F.3d 879

UNITED STATES of America, Plaintiff-Appellee,

v.Robert R. DOGGART, Defendant-Appellant.

No. 17-5813

United States Court of Appeals, Sixth Circuit.

Reargued: December 19, 2019

Decided and Filed: January 15, 2020

REARGUED: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Anna M. Baldwin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON SUPPLEMENTAL BRIEF: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Anna M. Baldwin, Thomas E. Chandler, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Perry H. Piper, UNITED STATES ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee.

Before: SUTTON, McKEAGUE, and THAPAR, Circuit Judges.

SUTTON, Circuit Judge.

In today’s sequel, we return to the plight of Robert Doggart, convicted at age 65 of soliciting others to terrorize the people of a small Islamic community in upstate New York. Last time around, we concluded that the district court improperly denied Doggart the benefit of a plea bargain when it applied the wrong legal standard to conclude that he had not made a "true threat." On remand, the district court identified an alternative basis for rejecting the plea bargain—that the five-year sentence generated by it was too lenient to account for the gravity of Doggart’s conduct. Doggart objects to this conclusion and other aspects of his convictions as well as the 235-month sentence. In particular, he objects to one of his arson-solicitation convictions, contending that the target of the solicitation—a mosque—was not "used in" interstate commerce. 18 U.S.C. § 844(i). We affirm in part and reverse in part, and remand for resentencing.

I.

In 2014, Doggart, a nuclear engineer and former congressional candidate, became convinced that an Islamic community in New York, self-identified as "Islamberg," was plotting a terrorist attack against New York City. R. 285 at 38. In a nod to O. Henry, he decided the best solution would be a terrorist attack of his own. He began posting on his Facebook page that Islamberg, referred to as "Target 3," had to be "utterly destroyed." R. 14 at 2.

His messages drew the attention of the FBI. It tasked a confidential informant to strike up a conversation with him. Over the internet and over the phone, Doggart tried to goad the informant into helping him assault Islamberg. He explained that the residents had "to be killed" and that "[t]heir buildings need[ed] to be burnt down," especially their school, cafeteria, and mosque. Id. at 2–3. Doggart had the details all worked out, down to the weapons they would use, including Molotov cocktails and homemade explosives. And he had a "drop dead" day for completing the operation: April 15, 2015. Id. at 3.

Doggart did more than talk by phone about his proposed terrorist acts. On several occasions, he traveled to meet with the "gunners" he enlisted to help him. Id. at 4. One of those meetings involved the FBI’s confidential informant. Doggart showed up to the meeting with several firearms along with a map of Islamberg that marked the buildings he planned to destroy. Over lunch, he discussed different plans of attack. He made clear that his primary objective was to "burn down [the] mosque," and that if the residents resisted he would have no choice but to "return fire." R. 302-7 at 3. He hoped to avoid killing children unless he "ha[d] to," although he speculated that some "collateral damage" would be inevitable. R. 302-8 at 44. Having heard enough, law enforcement arrested him soon thereafter.

After negotiating with federal prosecutors, Doggart reached a deal. He would plead guilty to one count of transmitting a threat to kill or injure someone in interstate commerce, carrying a statutory maximum of five years. See 18 U.S.C. § 875(c). In exchange, the government would not oppose a sentence reduction for his acceptance of responsibility. The district court rejected the agreement for want of a factual basis. It found insufficient evidence that Doggart had made a "true threat," which it read to require a showing that his communications were designed to "effect some change or achieve some goal through intimidation." R. 29 at 4 (quotation omitted).

The government came back with a new indictment and different charges. It charged Doggart with two counts of solicitation, 18 U.S.C. § 373, one for solicitation to damage religious property, id. § 247, and one for solicitation to commit federal arson, id. § 844(i). It also charged him with two counts of making a threat in interstate commerce over the telephone. See id. § 844(e). The case went to a jury, which convicted Doggart on all counts. The district court granted Doggart’s motion for judgment of acquittal on his two § 844(e) convictions for the same reason it rejected his plea bargain. The judge imposed two consecutive sentences—a 120-month sentence for his § 247 solicitation conviction and a 115-month sentence for his § 844(i) solicitation conviction.

Doggart appealed. He argued that the district court wrongly denied him the benefit of his plea bargain by applying the wrong legal test for true threats. We agreed. We sent the case back to the district court with instructions that, if it found Doggart intended to make a threat, it must "allow him to accept the plea agreement" the government offered. United States v. Doggart , 906 F.3d 506, 512 (6th Cir. 2018).

The district court concluded that Doggart made a threat. But it refused to accept the plea bargain for a new reason. It concluded that the agreement did not adequately reflect the severity of his conduct. Unwilling to accept a different deal, Doggart reinstated his original challenges to his conviction and sentence and objected anew to the court’s rejection of the plea agreement. The government never appealed the trial court’s dismissal of the two threat convictions under § 844(e), whether during the first appeal or the second one.

II.

Up first is whether the district court abused its discretion in not accepting the plea deal we required the government to extend to him. See United States v. Cota-Luna , 891 F.3d 639, 648 (6th Cir. 2018). It did not. Because both parties agreed that the plea deal would not have allowed the government to bring other charges, Criminal Rule 11(c)(1)(A) governs. And a district court is under no obligation to accept a Rule 11(c)(1)(A) plea deal even if the defendant and the government both agree to it. See Fed R. Crim. P. 11(c)(3) ; United States v. Skidmore , 998 F.2d 372, 376 (6th Cir. 1993). When deciding whether to accept an agreement of this sort, courts often consider whether it "reflect[s] the seriousness of the actual offense behavior." U.S.S.G. § 6B1.2(a) ; see, e.g. , United States v. Baird , 109 F.3d 856, 868 (3d Cir. 1997) ; United States v. Jeter , 315 F.3d 445, 447–48 (5th Cir. 2002) ; United States v. Greener , 979 F.2d 517, 520–21 (7th Cir. 1992).

Doggart responds that our order cabined the district court’s discretion. "If the court finds that Doggart intended to make a threat," the order said, "it must allow him to accept the plea agreement." 906 F.3d at 512. But the district court followed our instructions as far as they went. We ordered the court to permit Doggart to accept the government’s offer; we did not order the court to accept that agreement without further scrutiny. Doing so would have divested the district court of an essential responsibility under Criminal Rule 11(c)(1)(A), one it did not handle the first time around. This was not the resolution, it is true, that we expected. And it is not the resolution, it is fair to say, that the government and Doggart expected, both of whom were surprised by the court’s decision. But the Criminal Rules vest the initial (and usually final) authority over the approval of such plea agreements with the district court. The court did not abuse its broad discretion in exercising that authority, and accordingly we must allow it.

That said, we must acknowledge some mystery from our vantage point about the consensus that this was a Rule 11(c)(1)(A) plea deal. The written plea agreement does not mention that rule or any other. It does not say, as that rule requires, that the government agrees "not" to "bring" other charges or to "move to dismiss" other charges already brought. Paragraph 1 of the agreement, it is true, says that, "[i]f the defendant violates the terms of this plea agreement ... the United States may prosecute the defendant for any and all federal crimes that the defendant committed related to this case ... [and] the defendant expressly waives any statute of limitations defense." R. 14 at 7–8. But similar boilerplate abounds in other plea deals, whether they contain a charge bargain or not. Adding to the confusion, this was not a case in which the government impliedly engaged in charge bargaining by simultaneously moving to dismiss other counts. The information filed against Doggart contained just the count Doggart pleaded guilty to.

The stakes of imprecision are not inconsequential. If the government made no such offer, Rule 11(c)(1)(B) would cover the plea. In that case, the district court would have no authority to reject the deal. Because the character of this plea deal does not implicate our jurisdiction, we adopt the interpretation that both parties (ultimately) assented to during the plea colloquy and stipulated to on appeal. Even so, the criminal justice system would benefit from more precision at the trial-court level on this score.

III.

Doggart objects to his conviction for solicitation to commit federal arson on the ground that the target of the crime—a mosque—is not "used in" interstate commerce or in any activity affecting interstate commerce. 18 U.S.C. §§ 373, 844(i). We agree.

The text of this criminal statute does not create a natural home for the attempted destruction of a mosque. The underlying arson statute says in relevant part: "Whoever...