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Date: 11-10-2021
Case Style:
United States of America v. Jeremy Hugh Rogers
Case Number: 20-2165
Judge: Allison D. Burroughs
Court:
On appeal from The UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
Plaintiff's Attorney: Donald E. Clark, Acting United States Attorney, and Noah Falk,
Assistant United States Attorney
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with one count of unlawful possession of a firearm by a felon charge.
Because Rogers pleaded guilty, we draw the relevant
facts from the undisputed portions of the presentence
investigation report ("PSR") and the transcript of the sentencing
hearing. See United States v. Benoit, 975 F.3d 20, 21 (1st Cir.
2020)(citing United States v. Bermúdez-Meléndez, 827 F.3d 160, 162
(1st Cir. 2016)).
A. The Offense and Arrest
On August 3, 2019, twenty-two people were killed and
another twenty-four were injured during a mass shooting at a
Walmart store in El Paso, Texas. On August 12, 2019, less than
two weeks after the El Paso shooting, Rogers used one of his
Facebook accounts to send a video of himself to a fellow Facebook
user. In that video, a mask-clad Rogers loads a magazine into an
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AR-15 assault rifle and says "man I'm tired of this shit, I'm going
to fucking Walmart." That same day, Rogers sent another Facebook
user a different video of an AR-15, which he calls "Bella." In
that video, Rogers is heard asking "do you like my new Walmart
killer?" and saying that because he was bored, he had purchased
bullets and shotgun shells.
A few days later, on August 17, 2019, Rogers sent a
photograph of himself dressed in camouflage and holding a rifle to
a Facebook group "conversation." Along with the image, he posted
the text "[w]ho's with me?" The next day, Rogers posted another
image to Facebook that portrayed gloved hands holding an AR-15 and
depicted a person at the entrance of a Walmart store with the text
"Match begins in 2 [seconds]."1
On or around August 21, 2019, more than one of the
recipients of Rogers' Facebook posts reported them to law
enforcement, apparently concerned that Rogers would actually carry
out a shooting at a Walmart. In response, law enforcement
consulted with Walmart and decided that the Walmart store in
Thomaston, Maine, which was the closest to Rogers' last known
location, should be closed an hour early.
Rogers was arrested at his residence on August 22, 2019.
1 At his November 19, 2020 sentencing hearing, Rogers asserted
that the image, which he had downloaded from the internet, was
actually from a video game and not an image of him.
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At a voluntary, post-arrest interview, Rogers said that the videos
and images were intended to be jokes, that he did not actually
plan to go to Walmart, and that he would always possess a gun,
regardless of his probation status. During the interview, Rogers
also discussed an incident where he had wanted to kill a person
who, in his view, had attempted to take his daughter away from
him.
Rogers was initially detained by Maine state
authorities. After his detention, the following statements were
found on the walls of his cell: "I AM a terrorist"; "Death I
Bring"; "The Walmart Terrorist was here!"; and "I love murder."
Rogers' cellmate also told his probation officer that he was
concerned that Rogers would act violently because Rogers had
expressed a desire to shoot people and obsessed over a video of a
mass shooting at a mosque in New Zealand.
B. The Plea and Sentencing
On February 20, 2020, Rogers pleaded guilty to one count
of being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). As part of the plea agreement, the parties
agreed to recommend a base offense level of twenty, with a
two-level offense enhancement under U.S. Sent'g Guidelines Manual
§ 2K2.1(b)(1)(A) and a three-level reduction for acceptance of
responsibility pursuant to U.S. Sent'g Guidelines Manual § 3E1.1.
In the PSR, the U.S. Probation officer agreed with the parties'
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recommendations but also applied a four-level increase under U.S.
Sent'g Guidelines Manual § 2K2.1(b)(6)(B) because Rogers
"possessed a firearm in connection with another felony offense."
Specifically, the Probation officer determined that a
preponderance of the evidence demonstrated that Rogers had
committed the offense of Terrorizing With A Dangerous Weapon in
violation of Maine law, Me. Rev. Stat. Ann. tit. 17-A, § 210(1)(A)-
(B).2 Maine's Terrorizing statute provides that:
A person is guilty of terrorizing if that
person in fact communicates to any person a
threat to commit or to cause to be committed
a crime of violence dangerous to human life,
against the person to whom the communication
is made or another, and the natural and
probable consequence of such a threat, whether
or not such consequence in fact occurs, is:
A. To place the person to whom the threat is
communicated or the person threatened in
reasonable fear that the crime will be
committed[;] . . . . or
B. To cause evacuation of a building, place of
assembly or facility of public transport or to
cause the occupants of a building to be moved
to or required to remain in a designated
secured area.
Me. Rev. Stat. Ann. tit. 17-A, § 210(1)(A)-(B)(2020).
2 In addition to the federal indictment, Rogers was also
charged in Maine state court on three felony counts:
(1) Terrorizing under Me. Rev. Stat. Ann. tit. 17-A, § 210(1)(B);
(2) Terrorizing With A Dangerous Weapon under Me. Rev. Stat. Ann.
tit. 17-A, § 210(1)(A); and (3) Illegal Possession Of A Firearm
under Me. Rev. Stat. Ann. tit. 15, § 393(1)(A-1). At the time of
the sentencing hearing, these charges were still pending in state
court, but it was understood that Rogers would plead guilty to
some of the charges later that day.
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Rogers was sentenced on November 19, 2020. His objection
to the four-level increase under U.S. Sent'g Guidelines Manual
§ 2K2.1(b)(6)(B) was overruled by the district court, which found
that the increase applied because (1) the presence of a firearm in
the videos and images demonstrated how Rogers would carry out his
threats, so "the gun clearly [was] at the heart of the facilitation
of the underlying felony offense"; and (2) the videos and images
caused alarm or fear in others, as required by the Terrorizing
statute, because at least one recipient was concerned enough to
contact law enforcement and law enforcement closed the Thomaston
Walmart early. The district court ultimately calculated Rogers'
offense level as twenty-three, with a criminal history category of
II, and an advisory guideline sentencing range of fifty-one to
sixty-three months of incarceration.
After hearing from both parties, the district court
sentenced Rogers to an above-Guidelines sentence of seventy-two
months of incarceration. In reaching this sentence, the district
court stated that it had considered all the factors set forth in
18 U.S.C. § 3553(a) and noted that the "most important" factors
were "the nature and circumstances of the offense, the history,
personal characteristics and record of [Rogers], the seriousness
of the offense, the need for just punishment[,] and the need to
protect the public." The district court articulated its concerns
about Rogers' history of threats to others (including a principal
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and teacher), his problems managing his anger, his fascination
with firearms, and public safety.
II. Discussion
When reviewing sentencing challenges, "[w]e first
consider whether the sentence is procedurally reasonable, and then
consider whether it is substantively reasonable." United States
v. Hassan-Saleh-Mohamad, 930 F.3d 1, 6 (1st Cir. 2019) (quoting
United States v. Rodríguez-Reyes, 925 F.3d 558, 562-63 (1st Cir.
2019)).
A. Procedural Reasonableness
When reviewing the reasonableness of a sentencing
enhancement, "we review the district court's legal rulings anew,
its factfinding for clear error, and its application of the
guidelines to the case on a 'sliding scale' -- with the scrutiny
cranked up the more law-driven the court's decision is." United
States v. Matthews, 749 F.3d 99, 105 (1st Cir. 2014). "The clear
error standard requires 'a strong, unyielding belief that a mistake
has been made.'" United States v. Newton, 972 F.3d 18, 20 (1st
Cir. 2020) (quoting United States v. Oliveira, 907 F.3d 88, 92
(1st Cir. 2018)). "[T]he sentencing court's choice among rational
but competing inferences cannot be clearly erroneous." Matthews,
749 F.3d at 105.
Rogers' procedural reasonableness argument focuses on
the district court's application of the four-level offense
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increase under U.S. Sent'g Guidelines Manual § 2K2.1(b)(6)(B). In
relevant part, U.S. Sent'g Guidelines Manual § 2K2.1(b)(6)(B)
allows for a four-level offense increase "[i]f the defendant
. . . used or possessed any firearm or ammunition in connection
with another felony offense . . . ." U.S. Sent'g Guidelines Manual
§ 2K2.1(b)(6)(B) (U.S. Sent'g Comm'n 2018).
The enhancement applies, then, if the court
finds that the government proved two things by
a preponderance of the evidence: one, that the
defendant committed another felony offense
. . . and two, that he possessed a firearm in
connection with that other offense—a phrase
read broadly under our caselaw . . . .
Matthews, 749 F.3d at 105 (emphasis in original)(internal
quotation marks omitted). "Either direct or circumstantial
evidence will do, with the sentencing court free to draw
commonsense inferences from the evidence." Id.
Rogers first argues that the district court erred in
finding that his actions constituted a threat under Maine's
Terrorizing statute, Me. Rev. Stat. Ann. tit. 17-A, § 210(1),
because the videos and images were privately sent to his Facebook
friends and the content was not directed at a particular party.3
Considering the record as a whole, there is enough evidence to
3 When terrorizing conduct in violation of Me. Rev. Stat. Ann.
tit. 17-A, § 210(1)(A) occurs "with the use of a dangerous weapon,"
as it did here, the offense qualifies as a Class C felony under
Maine law. See Me. Rev. Stat. Ann. tit. 17-A, § 1604(5)(A)(2020);
Me. Rev. Stat. Ann. tit. 17-A, § 210(1)(A)(2020).
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support the district court's finding that Rogers violated the
Terrorizing statute, and his contentions are therefore without
merit. By its plain language, the Terrorizing statute requires
only that "the natural and probable consequence" of the threat is
that "the person to whom the threat is communicated" is placed "in
reasonable fear that the crime will be committed." Id. § 210(1)(A)
(2020). Although Rogers asserts otherwise, the statute does not
require that the threats be directly communicated to the ultimate
victim. See State v. Michaud, 473 A.2d 399, 403–04 (Me. 1984)
(holding that an indictment for terrorizing under Me. Rev. Stat.
Ann. tit. 17-A, § 210(1) was sufficient when it alleged that the
natural and probable consequence of a death threat communicated to
a third party, and not the intended victim, was to place the third
party in "reasonable fear that said crime would be committed").
Here, at least one of the recipients of Rogers' Facebook
posts was concerned enough to contact law enforcement about them.
Law enforcement, in turn, informed Walmart about the posts, which
resulted in the Thomaston store closing early. Significantly,
these events all took place against the backdrop of a mass shooting
at a Walmart that had occurred just days before. Therefore, the
evidence supports the conclusion that the natural and probable
consequence of Rogers' actions was that the recipients would fear
that he would commit a violent act. Thus, the district court did
not err in finding that Rogers violated the Terrorizing statute.
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Rogers next argues that U.S. Sent'g Guidelines Manual
§ 2K2.1(b)(6)(B) was improperly applied because the evidence is
insufficient to establish a connection between his threats and a
firearm. We have no trouble concluding that the district court's
factual finding on this point was not clearly erroneous. As we
have previously held, "[t]he key question is whether a sufficient
nexus exists between the weapon and the [additional felony]. If
a firearm somehow aids or facilitates, or has the potential to aid
or facilitate, the commission of another offense, application of
[U.S. Sent'g Guidelines Manual § 2K2.1(b)(6)(B)] is warranted."
United States v. Paneto, 661 F.3d 709, 717 (1st Cir. 2011) (second
alteration in original) (citations and internal quotation marks
omitted). The record demonstrates that a firearm featured
prominently in each of the videos and images that Rogers shared on
Facebook. For example, in one video he loads the AR-15 and says
"I'm going to fucking Walmart." In another, he displays the AR-15
and asks "do you like my new Walmart killer?" These facts are
more than sufficient to support the finding that the firearm
magnified the threatening nature of Rogers' communications and
ultimately caused a recipient to reasonably fear that Rogers was
likely to commit a violent act. In other words, the firearm
facilitated and aided the terrorizing conduct. See id.
Accordingly, for the reasons described above, the
district court did not err in applying the four-level offense
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increase pursuant to U.S. Sent'g Guidelines Manual
§ 2K2.1(b)(6)(B).
B. Substantive Reasonableness
Challenges to the substantive reasonableness of a
sentence are reviewed for abuse of discretion. United States v.
Bruno-Campos, 978 F.3d 801, 808 (1st Cir. 2020) (citing
Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020)).
"A sentence is substantively reasonable if the district court
provided a 'plausible sentencing rationale and reached a
defensible result.'" United States v. Gomera-Rodríguez, 952 F.3d
15, 20 (1st Cir. 2020) (quoting United States v. Coffin, 946 F.3d
1, 8 (1st Cir. 2019)). When the district court imposes an
above-Guidelines sentence, "an adequate explanation is required."
Bruno-Campos, 978 F.3d at 809. Although "the greater the extent
of a variance, the more compelling the sentencing court's
justification must be," a sentence well beyond the guidelines range
may still be reasonable. United States v. Tanco-Pizarro, 892 F.3d
472, 484 (1st Cir. 2018) (quoting United States v. de Jesús, 831
F.3d 39, 43 (1st Cir. 2016)).
Rogers argues that his seventy-two-month sentence was
substantively unreasonable because the district court's rationale
for the above-Guidelines sentence focused on his terrorizing
activity, which was already accounted for in the U.S. Sent'g
Guidelines Manual § 2K2.1(b)(6)(B) analysis.
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We disagree. Rogers interprets the district court's
reasoning too narrowly. The district court explicitly stated the
reasons for its sentence, which went beyond the facts relevant to
Rogers' terrorizing conduct. As laid out above, see supra Section
I.B, the district court expressed serious concerns with Rogers'
troubling threats to others, including death threats, which
occurred before the terrorizing conduct considered in the U.S.
Sent'g Guidelines Manual § 2K2.1(b)(6)(B) analysis, as well as the
need to ensure the public's safety. Accordingly, the district
court's sentence is plausible, defensible, and substantively
reasonable.
Outcome: For the reasons given, we find that the sentence imposed
was reasonable.
Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: