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United States v. Bailey

United States Court of Appeals, Sixth Circuit

July 26, 2019

United States of America, Plaintiff-Appellee,
v.
Davi Sarah Bailey, Defendant-Appellant.

          Appeal 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.

         ON BRIEF:

          Lawrence J. Phelan, Walker, Michigan, for Appellant.

          Davin M. Reust, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

          Before: CLAY, LARSEN, and READLER, Circuit Judges.

          OPINION

          LARSEN, CIRCUIT JUDGE

         Several 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.

         I.

         In 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.

         Four 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.

         In later messages, Bailey again threatened to physically assault K.P's sister.

         In July 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.

         The 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 ...


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