Submitted: April 15, 2019
Appeals from United States District Court for the District of
Minnesota - St. Paul
SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
2013, a gang war erupted in Minneapolis, resulting in an
exchange of gunfire between the members of rival gangs over
the course of several months. As a result, the government
indicted a host of suspected gang members, including Tywin
Bender, on various gun charges. Bender pleaded guilty to
conspiring to possess firearms as a convicted felon.
See 18 U.S.C. §§ 371, 922(g)(1). While
awaiting sentencing, one of Bender's codefendants
proceeded to a trial where the government presented testimony
from two gang members-one in the same gang as Bender and one
in the rival gang-that provided context for their ongoing
conflict. The jury found Bender's codefendant guilty of
the crimes charged against him.
after his codefendant's conviction, an incarcerated
Bender telephoned a friend and instructed her to send an
email to two fellow gang members housed in another prison
where the two witnesses were housed, giving them the
"green light" to "smash" the witnesses.
Bender's friend did as he instructed, but prison
authorities intercepted one of the two emails before it
reached its intended recipient, and they later found a copy
of the email in the other intended recipient's
possession. The government indicted Bender with conspiring to
retaliate against a federal witness, see 18 U.S.C.
§ 1513(f), and after a trial a jury found him guilty of
committing the offense.
sentencing the district court applied, over Bender's
objection, an eight-level enhancement to the Guidelines
offense level on Bender's witness-retaliation conviction
because the court determined that "the offense involved
causing or threatening to cause physical injury to a person,
or property damage, in order to obstruct the administration
of justice." USSG § 2J1.2(b)(1)(B). The court
sentenced Bender to sixty months in prison on the firearms
conviction followed by a consecutive seventy months in prison
on the witness-retaliation conviction.
appealed, maintaining, among other things, that the district
court erred in applying the eight-level enhancement to the
witness-retaliation charge. A panel of this court vacated
Bender's sentence on other grounds and remanded for
resentencing without addressing Bender's challenge to the
enhancement. See United States v. Parker, 871 F.3d
590, 607 (8th Cir. 2017). The issue arose again during
resentencing, and the district court again denied Bender's
challenge to the enhancement. The district court sentenced
Bender to sixty months in prison on the firearms charge and
fifty-eight months in prison on the witness-retaliation
appeals again, asserting that the court erred in applying the
eight-level enhancement to his offense level for the
witness-retaliation charge. He maintains that he cannot be
viewed as a but-for cause to any threats made against the
witnesses because the intended recipients of his threatening
missive knew, or should have known, of those witnesses'
testimonies, and those intended recipients stood "ready
and willing to impose a sanction" on the witnesses with
or without Bender's permission or encouragement. He
argues that, under Burrage v. United States, 571
U.S. 204 (2014), the government had to prove
"Bender's efforts were the singular cause of the
threats, as opposed to incidental, tangential, [or] even
Burrage, a defendant was convicted of unlawfully
distributing heroin that resulted in someone's death.
Because a death resulted, the defendant faced a mandatory
minimum twenty-year sentence. The evidence showed that the
decedent combined the heroin with other substances and died,
and experts opined only that the heroin contributed to the
decedent's death, not that the decedent would have lived
but for taking the heroin. The Supreme Court held that the
defendant could not be held responsible for the
decedent's death since the heroin he distributed was not
a but-for cause of death. Id. at 218-19.
simply has no application here. The enhancement Bender
challenges requires only that he "caus[e] or threaten
to cause physical injury to a person, or property damage, in
order to obstruct the administration of justice."
See USSG § 2J1.2(b)(1)(B). It does not require
that Bender's acts cause some type of harm, such as
death, injury, or even an apprehension of retaliation; Bender
triggered the enhancement the moment he sent a threat by way
of his friend. The offense was complete. Because the action
required to apply the enhancement occurred when Bender
dispatched his friend with the threatening message, we affirm
the district court's application of the eight-level
enhancement under § 2J1.2(b)(1)(B).