United States v. Bailey, No. 18-2388 (6th Cir. 2019)
Annotate this CaseClayton, the father of Bailey’s child, was charged with sexual exploitation of a minor. Bailey was present at Clayton’s trial when a victim, K.P., testified. K.P. and her mother reported that Bailey later threatened to assault K.P. in retaliation for her testimony. Bailey was also heard making threats to another testifying victim. Days after the guilty verdict, Bailey used Facebook Messenger to send K.P.’s sister messages stating: “I’m beating your ass cuz of your sister and your fat ass momma can get it too.” In later messages, Bailey again threatened to assault K.P’s sister. Bailey was indicted for witness retaliation, 18 U.S.C. 1513(b)(1)(c); 1591(a)(1)(b)(2), and pleaded guilty. The Presentence Report recommended a cross-reference (U.S.S.G. 2J1.2(c)(1)), for obstructing the prosecution of Clayton’s criminal case, which provides that the offense level shall be 6 levels lower than that of the offense that was obstructed as long as the resulting level is not less than 4 nor greater than 30. Clayton's offense level (underlying Bailey’s obstruction) was 40. Bailey’s offense level under the cross-reference became 30. The PSR alternatively recommended U.S.S.G. 2J1.2(b)(1)(B), which dictates an 8-level enhancement for “threatening to cause physical injury to a person ... to obstruct the administration of justice.” With that enhancement, Bailey’s offense level would have become 22 but when the cross-reference results in a greater offense level than that enhancement, the cross-reference controls. Applying the cross-reference, the district court found that Bailey’s Guidelines range was 78-97 months and sentenced her to 78 months. The Sixth Circuit affirmed, finding the sentence substantively and procedurally reasonable.
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