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United States v. Doggart

United States Court of Appeals, Sixth Circuit

January 15, 2020

United States of America, Plaintiff-Appellee,
v.
Robert R. Doggart, Defendant-Appellant.

          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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