United States v. Tywin Bender, No. 17-3819 (8th Cir. 2019)
Annotate this CaseThe Eighth Circuit affirmed defendant's resentence after he was convicted of conspiring to retaliate against a federal witness. The court held that the district court did not err by applying an eight-level sentencing enhancement under USSG 2J1.2(b)(1)(B) to defendant's offense level for the witness-retaliation charge where he triggered the enhancement the moment he sent a threat by way of his friend. The court rejected defendant's contention that, under Burrage v. United States, 571 U.S. 204 (2014), the government had to prove defendant's efforts were the singular cause of the threats, as opposed to incidental, tangential, or even contributing causes. In this case, the action required to apply the enhancement occurred when defendant dispatched his friend with the threatening message.
Court Description: Per Curiam - Before Smith, Chief Judge, and Arnold and Kelly, Circuit Judges] Criminal case - Sentencing. For the court's prior opinion in the matter, see U.S.v. Parker, 871 F.3d 590 (8th Cir. 2017), which vacated defendant's sentence and remanded the matter for resentencing. At resentencing, the district court reapplied an eight-level Guidelines Sec. 2J1.2(b)(1)(B) enhancement for obstruction of justice on defendant's witness-retaliation charge; application of the enhancement affirmed; defendant's argument that under Burrage v. U.S., 571 U.S. 204 (2014) the government had to prove his efforts were the singular cause of the threats, as opposed to an incidental or contributing cause, is rejected as Burrage has no application to this situation.
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