from the United States District Court for the Western
District of Michigan at Grand Rapids. No.
1:18-cr-00156-1-Janet T. Neff, District Judge.
Lawrence J. Phelan, Walker, Michigan, for Appellant.
M. Reust, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids,
Michigan, for Appellee.
Before: CLAY, LARSEN, and READLER, Circuit Judges.
LARSEN, CIRCUIT JUDGE
days after watching a victim testify at trial, Davi Bailey
threatened to harm the victim's sister in retaliation for
the victim's testimony. Bailey later pleaded guilty to
retaliating against a witness, and the district court
sentenced her to seventy-eight months' imprisonment.
Bailey now argues that her sentence was procedurally and
substantively unreasonable. We disagree and AFFIRM the
district court's sentence.
December 2017, authorities charged Michael Clayton with
sexual exploitation of a minor, among other offenses. Clayton
is the father of Bailey's child and was, at that time,
Bailey's boyfriend. Clayton went to trial in June 2018.
Bailey was present at Clayton's trial when one of the
victims, K.P., testified. Following her testimony, K.P. and
her mother reported that Bailey had threatened to assault
K.P. in retaliation for her testimony. That same day, Bailey
was also heard making threats to another testifying victim.
The next day, the jury found Clayton guilty on all counts.
days after the jury returned its verdict, Bailey used
Facebook Messenger to send K.P.'s sister the following:
Every time I see you bitch I'm going upside your idc if
you got your daughter with u or not for that shit your sister
did rat ass bitch and don't think I don't kno where
you stay and your boy can get it too every time you walk out
them apartment doors you better take a double look hoe . . .
on god I'm beating your ass cuz of your sister and your
fat ass momma can get it too . . . now go and show the police
this you fucking rats.
later messages, Bailey again threatened to physically assault
2018, Bailey was indicted on two counts of witness
retaliation in violation of 18 U.S.C. § 1513(b)(1), (c)
and 18 U.S.C. § 1591(a)(1), (b)(2). In August, Bailey
pleaded guilty to the second count, which specifically
charged her with threatening K.P.'s sister in retaliation
for K.P.'s testimony.
Presentence Investigation Report recommended that the court
apply a cross reference pursuant to U.S.S.G. §
2J1.2(c)(1) (the "cross reference"), for
obstructing the prosecution of Clayton's criminal case.
Pursuant to § 2J1.2(c)(1), "[i]f the offense
involved obstructing the investigation or prosecution of a
criminal offense, apply § 2X3.1 (Accessory After the
Fact) in respect to that criminal offense." Section
2X3.1(a) then provides that the offense level shall be 6
levels lower than that of the underlying offense (the offense
that was obstructed) as long as the resulting offense level
is not less than 4 and not greater than 30. The offense level
underlying Bailey's ...