Reargued: December 19, 2019
Appeal
from the United States District Court for the Eastern
District of Tennessee of Chattanooga. No.
1:15-cr-00039-1-Curtis L. Collier, District Judge.
REARGUED:
Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant.
Anna
M. Baldwin, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
ON
SUPPLEMENTAL BRIEF:
Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant.
Anna
M. Baldwin, Thomas E. Chandler, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., Perry H. Piper, UNITED STATES
ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee.
Before: SUTTON, McKEAGUE, and THAPAR, Circuit Judges.
OPINION
SUTTON, CIRCUIT JUDGE.
In
today's sequel, we return to the plight of Robert
Doggart, convicted at age 65 of soliciting others to
terrorize the people of a small Islamic community in upstate
New York. Last time around, we concluded that the district
court improperly denied Doggart the benefit of a plea bargain
when it applied the wrong legal standard to conclude that he
had not made a "true threat." On remand, the
district court identified an alternative basis for rejecting
the plea bargain-that the five-year sentence generated by it
was too lenient to account for the gravity of Doggart's
conduct. Doggart objects to this conclusion and other aspects
of his convictions as well as the 235-month sentence. In
particular, he objects to one of his arson-solicitation
convictions, contending that the target of the solicitation-a
mosque-was not "used in" interstate commerce. 18
U.S.C. § 844(i). We affirm in part and reverse in part,
and remand for resentencing.
I.
In
2014, Doggart, a nuclear engineer and former congressional
candidate, became convinced that an Islamic community in New
York, self-identified as "Islamberg," was plotting
a terrorist attack against New York City. R. 285 at 38. In a
nod to O. Henry, he decided the best solution would be a
terrorist attack of his own. He began posting on his Facebook
page that Islamberg, referred to as "Target 3," had
to be "utterly destroyed." R. 14 at 2.
His
messages drew the attention of the FBI. It tasked a
confidential informant to strike up a conversation with him.
Over the internet and over the phone, Doggart tried to goad
the informant into helping him assault Islamberg. He
explained that the residents had "to be killed" and
that "[t]heir buildings need[ed] to be burnt down,"
especially their school, cafeteria, and mosque. Id.
at 2-3. Doggart had the details all worked out, down to the
weapons they would use, including Molotov cocktails and
homemade explosives. And he had a "drop dead" day
for completing the operation: April 15, 2015. Id. at
3.
Doggart
did more than talk by phone about his proposed terrorist
acts. On several occasions, he traveled to meet with the
"gunners" he enlisted to help him. Id. at
4. One of those meetings involved the FBI's confidential
informant. Doggart showed up to the meeting with several
firearms along with a map of Islamberg that marked the
buildings he planned to destroy. Over lunch, he discussed
different plans of attack. He made clear that his primary
objective was to "burn down [the] mosque," and that
if the residents resisted he would have no choice but to
"return fire." R. 302-7 at 3. He hoped to avoid
killing children unless he "ha[d] to," although he
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