United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER OVERRULING DEFENDANT'S OBJECTIONS TO PRESENTENCE INVESTIGATION REPORT
MARK A. GOLDSMITH, District Judge.
A jury returned a verdict against Defendant Leon Gills on July 22, 2014, finding him guilty of the following crimes: (i) Racketeering (RICO) Conspiracy (Count One); (ii) Attempted Murder of MB (Maranda Barnes), RD (Rashima Doby), DM (DeAngelo McEwen), and RH (Rodney Harden) in Aid of Racketeering (Count Eight); (iii) Use and Discharge of a Firearm During and in Relation to a Crime of Violence (Count Nine); and (iv) Attempted Murder of CO (Charles Orr) in Aid of Racketeering (Count Thirty-Five). The Probation Department prepared a Presentence Investigation Report ("PSIR") for sentencing, to which Gills prepared objections. The Probation Department and the Government responded to Gills's objections, see Gov't Resp. (Dkt. 765),  and Gills filed a reply (Dkt. 770). The Court now addresses and overrules Gills's objections.
A. OBJECTION 1
Gills first objects to the PSIR's handling of his conviction for the attempted murder of Barnes, Doby, McEwen, and Harden. The PSIR treats each victim of this offense as a separate group, thereby increasing Gills's offense level by four levels after a multiple-count adjustment. Gills argues that because these four victims were all part of the same count of conviction - Count Eight: Attempted Murder of Barnes, Doby, McEwen, and Harden in Aid of Racketeering - they should not be separated, and this conduct should, therefore, only increase his offense level by one level. In support of this argument, Gills highlights language in the grouping rules referring to "counts."
The Court agrees with the Probation Department that, although charged as a single episode forming one overt act and one count of conviction, the harm incurred by Barnes, Doby, McEwen, and Harden should be treated separately. United States Sentencing Guideline ("U.S.S.G.") § 2E1.1 governs the calculation of the base offense level for purposes of a RICO or RICO-Conspiracy conviction. Under that guideline, the base offense level shall be the greater of: (1) 19 or (2) the offense level applicable to the underlying racketeering activity. "Conduct is underlying racketeering activity' under § 2E1.1 if it is relevant conduct' as defined in U.S.S.G. § 1B1.3(a)(1)." United States v. Campbell, 567 F.Appx. 422, 425 (6th Cir. 2014). That section defines "Relevant Conduct" as "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant, " and "in the case of a jointly undertaken criminal activity..., all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity...." U.S.S.G. §§ 1B1.3(a)(1)(A), (B).
Application Note 1 to U.S.S.G. § 2E1.1 provides further guidance for courts in calculating the offense level for a RICO-based conviction:
Where there is more than one underlying offense, treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2). To determine whether subsection (a)(1) or (a)(2) results in the greater offense level, apply Chapter Three, Parts A, B, C, and D to both (a)(1) and (a)(2). Use whichever subsection results in the greater offense level.
Id. (emphasis added); see also Chapter 3, Part D - Multiple Counts, Introductory Commentary ("Some offenses, e.g., racketeering and conspiracy, may be composite' in that they involve a pattern of conduct or scheme involving multiple underlying offenses. The rules in this Part are to be used to determine the offense level for such composite offenses from the offense level for the underlying offenses.").
Accordingly, the sentencing guidelines instruct the Court to treat each underlying offense as a separate count of conviction. Here, the RICO-Conspiracy conviction included Gills's attempted murder of four distinct individuals, each of whom suffered their own harm from Gills's conduct. See U.S.S.G. § 3D1.2, Background ("A primary consideration in this section is whether the offenses involve different victims. For example, a defendant may stab three prison guards in a single escape attempt. Some would argue that all counts arising out of a single transaction or occurrence should be grouped together even when there are distinct victims. Although such a proposal was considered, it was rejected because it probably would require departure in many cases in order to capture adequately the criminal behavior."). Gills cites no case authority for his argument that each of these victims should be grouped together simply because the Government grouped them into one overt act and corresponding count in the indictment, rather than four overt acts and counts. To do so would attach undue importance to the charging decision or the drafting preference of the Government's attorney, contrary to the Guidelines' teaching. See Chapter 3, Part D, Introductory Commentary (noting that the grouping rules are intended to "limit the significance of the formal charging decision"). The Court concludes the better argument is that set forth by the Probation Department and the Government - that each victim should be treated separately, as a separate count of conviction. See U.S.S.G. § 2E1.1, Application Note 1. Cf. United States v. Vasco, 564 F.3d 12, 23 (1st Cir. 2009) ("Crimes involving multiple victims, even if the offense arose out of a single event, are properly grouped separately.").
Nor is the Court persuaded by Gills's argument that the "jury was not given any opportunity to render different verdicts regarding the four individuals named in" Count Eight. Gills argues that "the jury was limited to a single verdict, regarding that single count, and the Government should not receive the benefit of its failure to charge separate offenses' regarding those individuals by now having them grouped' in order to achieve a higher adjusted offense level.'" See Gills Reply at 1-2 (emphasis in original). Gills had the opportunity to object to this phrasing on the verdict form, but failed to do so. Moreover, the verdict form asked whether the jury found Gills guilty of attempted murder as to all four victims by using the conjunction "and"; the jury found him guilty. Therefore, the Court is not persuaded by Gills's suggestion that the result at trial may have been different had the jury not been "limited" to a "single verdict" regarding "that single count." Indeed, Gills does not challenge that these were the four individuals sitting in the van at which he shot. See R. Harden Vol. I at 5-6 (listing the individuals in the van); D. McEwen, 6/26/2014 (Rough Tr.) at 56 (same). And if the result at trial would not have been different based on how the criminal episode was set out in the indictment and verdict form, the Court fails to comprehend why the charging decision should affect the sentencing determination.
Accordingly, the Court overrules this objection.
B. OBJECTION 2
Gills next objects to the two-level enhancement added to his PSIR for obstruction of justice. Gills argues that he did not intimidate or threaten witnesses; rather, his rap videos were mere artistic expression, unconnected to any "true threats." Gills also claims that, although there was testimony by Rodney Harden that Gills slipped Harden's statements to him, Harden was not threatened or intimidated by Gills.
The Court concludes that the two-level enhancement for obstruction of justice is appropriate. First, with respect to the rap videos, the Court has repeatedly rejected the argument that these were not threatening, including in the Memorandum Opinion Granting the Government's Motion for the Admission of Coconspirator Statements (Dkt. 784) and in the Opinion and Order Denying Defendants' post-trial motions (Dkt. 786). Gills's videos, which were posted to his social media account only a few months before his trial on a RICO Conspiracy and Attempted Murder charges, specifically names Government cooperators, labels them as "rats, " claims that these witnesses will "squeal before the heater get racked back, " states that he "got [his] hand on [his] Gat, " and asserts that "feds trying to get [him] life, if you tell you gon die." Gills also states that he hopes a young family member of one of these witnesses "get[s] whacked." See Dkt. 765-3. In another rap video posted from jail, Gills states that "[l]oyalty is all [he] know[s], and all you rat niggas gon die slow." See Dkt. 765-2. The tone of these videos, in combination with their timing, suggests that they were intended as threats, not just "artistic expression" - as Gills now claims. To that end, the ...