United States v. Kobito

994 F.3d 696

UNITED STATES of America, Plaintiff - Appellee,

v.Bobby John KOBITO, Defendant – Appellant.

No. 19-4560

United States Court of Appeals, Fourth Circuit.

Argued: December 11, 2020

Decided: April 21, 2021

ARGUED: Lisa S. Costner, LISA S. COSTNER, PA, Winston-Salem, North Carolina, for Appellant. Ashley E. Waid, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Matthew G.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Before GREGORY, Chief Judge, and KING and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in which Chief Judge Gregory and Judge King joined.

DIAZ, Circuit Judge:

Bobby Kobito pleaded guilty to knowingly possessing an unregistered silencer and was sentenced to 60 months’ imprisonment. He now appeals that sentence, challenging the district court's use of two enhancements under the United States Sentencing Guidelines Manual ("USSG"): § 3A1.4 for committing a felony intended to promote terrorism, and § 2K2.1(b)(6)(B) for possessing a firearm with the intent that it be used in connection with another felony, here "Felony Terroristic Threats."

Kobito contends that the enhancements shouldn't apply because he couldn't be convicted of the underlying terrorism felonies. But Kobito need not be convicted of a terrorism felony for § 3A1.4 to apply, and the district court didn't clearly err by including it in Kobito's Guidelines calculation. As a result, § 2K2.1(b)(6)(B) has no impact on the length of Kobito's sentence, rendering any alleged error as to its application harmless. We thus affirm the district court's judgment.

I.

A.

When Kobito entered a mosque in Raleigh, North Carolina to ask about an inflammatory video of an Imam that was circulating on social media, a local police officer took notice. The officer then walked by Kobito's car and spotted binoculars and shooting targets inside. A subsequent investigation led to Kobito's Facebook account, which included statements such as "One Man's Terrorist is Another Man's Patriot." J.A. 62, 131. The Federal Bureau of Investigation ("FBI") then directed a confidential informant to contact Kobito and learn whether he was planning any criminal acts aimed at the mosque. When the informant messaged him on Facebook, Kobito suggested meeting in person.

The two men met at a restaurant and the informant recorded the conversation. Kobito told the informant that he believed the state's fusion center,¹ located inside the Terry Sanford Federal Building in Raleigh, was a front for the "National Security Administration."² J.A. 18. Kobito explained that he "need[ed] to find the exact floor, [to] dump shots into the building," described three positions from which he could fire into the building, and discussed the measures he would take to cover his tracks. J.A. 19. Kobito then said:

I've been doing this, like I said for about ten years now, hardcore about the last six. I've got my (inaudible) that I've sniperized so it's ten round fed magazine. And freaking, they call it a solvent trap adapter, this company makes. And it's patented, it's completely legal to own. It freaking has threads for, ahh, an oil filter. Poor man's silencer ... Where do you buy your silencer? I go down to a fucking auto store ... And the shit works. Um, I used it, I snuck it one time at the range. Because I wanted to verify the other can that I created ... It takes a 7.62 x (inaudible) round to where it's not much louder than a .22.

J.A. 20–21.

After the meeting, Kobito emailed the informant a photograph of the Terry Sanford Federal Building and a document titled "Patriots Against Tyrants," which described Kobito's grievances against the government. J.A. 21.

Kobito next met the informant about three weeks later at a gun range. He identified the FBI, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the Department of Homeland Security buildings as potential targets. Kobito told the informant, "Evil is coming and we need to be proactive and try to disrupt the plans." Id.

The following day, Kobito texted the informant that he wasn't sure if he could personally execute the plan due to his age and health, so the informant should find someone else to help carry it out. But Kobito reaffirmed that the plan was "something that is needed" and stated that he remained willing to assist with planning and training. Id.

The informant met with Kobito for the final time a few months later and again recorded their conversation. Kobito told the informant that he still intended to do what they previously discussed. When the informant expressed concerns about the gun shots making too much noise, Kobito said:

Where I bought most parts from the guy, that I put on it you know. It just clamps on like a bayonet would, you know? So instead of that, he got what he calls a uh, calls it a muzzle-trap or something trap. And it clamps on just like the bayonet or the muzzle brake.

J.A. 22. The informant asked, "So it's like a silencer?" Id . Kobito responded:

No. It's frickin, just a little clamp thing you screw on a frickin oil filter ... So, I've got two STPs. Went down to my local, uh, was it NAPA or frickin AutoZone? I can't remember which. Frickin that's where I bought my silencers for $8 a piece. Frickin drilled a hole, and it ... takes that big ass round and drops it below a .22. And that is no shit. So, for me, noise isn't a factor utilizing that particular gun.

Id .

A few months later, the informant contacted Kobito and said he was "[s]till worried about the noise." Id. Kobito replied that his thoughts hadn't changed. The informant then asked whether Kobito still had the "device [they] talked about to help with noise," to which Kobito said, "Yes." Id. But when the informant asked to test the silencer, Kobito replied, "Getting bad vibes man. Told you how it was made & works! Let's part ways for now. I wish you the best of luck in all you do! In Liberty, Bob." J.A. 22–23. Kobito didn't respond to further attempts by the informant to contact him.

The government ultimately executed a search warrant at Kobito's home and found two silencers made from oil filters.

B.

A federal grand jury indicted Kobito for knowingly possessing an unregistered silencer in violation of 26 U.S.C. §§ 5861(d) and 5871.³ Kobito pleaded guilty pursuant to a plea agreement. The probation officer then prepared a Presentence Investigation Report and recommended the application of two enhancements.

First, the probation officer applied a twelve-level enhancement under USSG § 3A1.4 for "a felony that involved, or was intended to promote, a federal crime of terrorism." A "federal crime of terrorism" is defined in 18 U.S.C. § 2332b(g)(5) as an offense that "is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct" and is a violation of an enumerated statute. Here, that statute is 18 U.S.C. § 1363, which punishes anyone who "willfully and maliciously destroys or injures any structure, conveyance, or other real or personal property, or attempts or conspires to do such an act" so long as the property is "within the special maritime and territorial jurisdiction of the United States."

Second, the probation officer applied a four-level enhancement under USSG § 2K2.1(b)(6)(B) for possession of a firearm "with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense," which she called "Felony Terroristic Threats." J.A. 134–35.

The enhancements resulted in a Guidelines sentence of 188–235 months’ imprisonment, capped at the statutory maximum of 120 months. Kobito objected to both enhancements, arguing that he made "no terroristic threat," did "not commit or plan a terrorist act," and "withdrew from any and all conversation with the [informant] prior to being charged." J.A. 126. The court overruled Kobito's objections, but varied downward and sentenced him to 60 months in prison.

This appeal followed.

II.

Kobito now expands on his argument that the district court erred by enhancing his Guidelines range using USSG §§ 3A1.4 and 2K2.1(b)(6)(B) because he couldn't be convicted of the underlying terrorism felonies. He contends that the government didn't prove that the Terry Sanford Federal Building was "within the special maritime and territorial jurisdiction of the United States," as required by 18 U.S.C. § 1363, and that his conduct was mere "hyperbolic talk" rather than an attempt or conspiracy to commit terrorism or to issue terroristic threats. Appellant's Br. at 16.

As we explain, we review Kobito's new jurisdictional argument for plain error and find none. We also conclude that § 3A1.4 applies even if the defendant couldn't be convicted of a federal crime of terrorism, and so the district court properly used it to enhance Kobito's sentence. This renders harmless any alleged error in applying § 2K2.1(b)(6)(B) because, even without that enhancement, the statutory maximum would cap the Guidelines range.

A.

We review criminal sentences only "to determin[e] whether they are reasonable." Gall v. United States , 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (cleaned up). On a challenge to a district court's Guidelines calculations, we review legal conclusions de novo, factual findings for clear error, unpreserved arguments for plain error, United States v. Strieper , 666 F.3d 288, 292 (4th Cir. 2012), and preserved arguments for harmless error, United States v. Lynn , 592 F.3d 572, 576 (4th Cir. 2010). Before a district court can enhance a defendant's Guidelines range, the government must prove by a preponderance of the evidence that the enhancement applies. United States v. Steffen , 741 F.3d 411, 414 (4th Cir. 2013).

B.

We first turn to the § 3A1.4 enhancement. Recall that this enhancement applies when "the offense is a felony that involved, or was intended to promote, a federal crime of terrorism."...