                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 19a0168p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                ┐
                                    Plaintiff-Appellee,   │
                                                          │
                                                          >      No. 18-2388
        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.

                               Decided and Filed: July 26, 2019

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

                                      _________________

                                          COUNSEL

ON BRIEF: Lawrence J. Phelan, Walker, Michigan, for Appellant. Davin M. Reust, UNITED
STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
                                      _________________

                                           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.
 No. 18-2388                       United States v. Bailey                                 Page 2


                                                 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
 No. 18-2388                        United States v. Bailey                                 Page 3


Bailey’s obstruction—Clayton’s sexual exploitation of a minor—was 40. Bailey’s offense level
under the cross reference became 30 by virtue of the upper limit of § 2X3.1(a)(3)(A).

       The PSIR alternatively recommended enhancing Bailey’s offense level pursuant to
U.S.S.G. § 2J1.2(b)(1)(B) (the “enhancement”), which dictates an 8-level enhancement for
“threatening to cause physical injury to a person . . . in order to obstruct the administration of
justice.” With the enhancement, Bailey’s base offense level would have become 22. The
enhancement, however, ultimately did not affect Bailey’s offense level; when the cross reference
results in a greater offense level than the enhancement, the cross reference controls.           See
§ 2J1.2(c)(1).

       Bailey submitted written objections to both the cross reference and the enhancement and
renewed her objections at the sentencing hearing. The district court overruled both objections.
Using only the cross reference, the district court found that Bailey’s Guidelines range was
seventy-eight to ninety-seven months and sentenced her to seventy-eight months’ imprisonment.
Bailey timely appealed, arguing that her sentence is both procedurally and substantively
unreasonable.

                                                 II.

       A criminal sentence must be both procedurally and substantively reasonable. United
States v. Morgan, 687 F.3d 688, 693 (6th Cir. 2012). Procedural reasonableness requires the
court to “properly calculate the guidelines range, treat that range as advisory, consider the
sentencing factors in 18 U.S.C. § 3553(a), refrain from considering impermissible factors, select
the sentence based on facts that are not clearly erroneous, and adequately explain why it chose
the sentence.” United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018) (citing Gall v. United
States, 552 U.S. 38, 51 (2007)). Substantive reasonableness, however, focuses on whether
“a sentence is too long (if a defendant appeals).” Id. at 442. “The point is not that the district
court failed to consider a factor or considered an inappropriate factor; that’s the job of procedural
unreasonableness.” Id. Instead, substantive unreasonableness is “a complaint that the court
placed too much weight on some of the § 3553(a) factors and too little on others in sentencing
the individual.” Id. We review the district court’s legal determination about the Guidelines
 No. 18-2388                        United States v. Bailey                                 Page 4


de novo, its factual findings for clear error, and the substantive reasonableness of a sentence for
abuse of discretion. United States v. Bolds, 511 F.3d 568, 579, 581 (6th Cir. 2007).

                                                III.

       Bailey argues that her sentence was procedurally unreasonable because the district court
erroneously enhanced her sentence based on § 2J1.2(c)(1)’s cross reference. Bailey primarily
argues that the cross reference does not apply to “attempted obstruction,” i.e., conduct that did
not actually hinder or affect a prosecution. She argues that for this section to apply, she must
have successfully hindered the prosecution; Clayton’s conviction, she argues, is proof that she
did not succeed.

       We disagree. This court has recognized, albeit in dictum, that the cross reference applies
to attempts to obstruct justice. United States v. Roche, 321 F.3d 607, 610 n.2 (6th Cir. 2003)
(“Even if Roche had not been successful in obstructing justice by submitting the false
documents, § 2J1.2(c) still would apply. Section 2J1.2(c), and its cross reference to § 2X3.1,
apply equally to attempts to obstruct justice.” (citing United States v. Aragon, 983 F.2d 1306,
1316 (4th Cir. 1993))). Though we are not bound by the dictum of a previously published
opinion, see United States v. Burroughs, 5 F.3d 192, 194 (6th Cir. 1993), Roche’s conclusion that
§ 2J1.2(c) applies to attempts to obstruct justice is also consistent with this circuit’s caselaw. We
have frequently affirmed the application of the cross reference in cases that Bailey would label
mere “attempted obstruction”—that is, when a prosecution succeeded despite the defendant’s
efforts. See, e.g., United States v. Kimble, 305 F.3d 480, 483 (6th Cir. 2002); United States v.
Price, 30 F. App’x 333, 333–34, 336 (6th Cir. 2002). Roche’s conclusion is also consistent with
other circuits that have addressed this issue. See United States v. Solofa, 745 F.3d 1226, 1231
(D.C. Cir. 2014) (collecting cases and stating that “every circuit to consider the issue has held
that the [cross reference] covers attempts”).

       Of at least equal import, the Guidelines’ text supports the conclusion that the cross
reference covers attempts. The Obstruction of Justice Guideline, § 2J1.2, specifically accounts
for success in one subsection. See U.S.S.G. § 2J1.2(b)(2) (providing for a three-level increase “if
the offense resulted in substantial interference with the administration of justice” (emphasis
 No. 18-2388                             United States v. Bailey                                          Page 5


added)). No such language appears in the cross reference—the offense must only “involve[]
obstructing the investigation or prosecution of a criminal offense.” § 2J1.2(c)(1). In other
words, the Obstruction of Justice Guideline accords special treatment in subsection (b)(2) to
successfully impeding a criminal case, singling out such conduct for a three-level increase. It
follows that even an ineffective attempt to interfere is subject to the cross reference provided for
in subsection (c), which applies even if subsection (b)(2) does not. For these reasons, we reject
Bailey’s argument that the cross reference does not apply to “attempted obstruction.”

        Bailey also cursorily argues that use of the cross reference was inappropriate because she
made the threats after K.P. had finished testifying. To the extent Bailey suggests that use of the
cross reference was inappropriate because Clayton’s prosecution had ended, we disagree.
Although Bailey’s threats occurred after the jury had returned its guilty verdict, the threats came
well before Clayton was sentenced. The “prosecution of a criminal offense” under § 2J1.2(c)(1)
includes the sentencing stage. Roche, 321 F.3d at 610. This makes sense. A victim’s role in a
“prosecution” does not necessarily end with the factfinder’s determination of guilt; courts can
and do rely on victim testimony during sentencing to determine a defendant’s appropriate
punishment. See, e.g., United States v. Klups, 514 F.3d 532, 538 (6th Cir. 2008); see also Fed.
R. Crim. P. 32(i)(4)(B) (requiring that the district court give a victim the opportunity to be heard
prior to sentencing). A threat to retaliate against a witness prior to his or her testimony at
sentencing could cause the victim to consider withholding that testimony.1

        Bailey next argues that using the cross reference was inappropriate because she had no
role in the underlying offense.            But application of the cross reference does not require
involvement in the underlying crime.                See U.S.S.G. § 2J1.2(c); see also id. at § 2J1.2,
Background (“Use of this cross reference will provide an enhanced offense level when the
obstruction is in respect to a particularly serious offense, whether such offense was committed by
the defendant or another person.”); Kimble, 305 F.3d at 486 (“[I]t does not matter whether the




        1For    similar reasons, we reject Bailey’s argument that the cross reference does not apply because she did
not carry out her threats. Bailey’s obstruction of an ongoing prosecution was complete the moment she threatened
to retaliate against a witness—making the threat is itself sufficient.
 No. 18-2388                       United States v. Bailey                                 Page 6


defendant is actually guilty of the crime referenced in § 2X3.1 in order for the higher sentence
recommendation to be imposed.”).

       And, finally, to the extent that Bailey argues that the cross reference is too harsh because
it does not discount for threats that were neither carried out against the victim nor effective in
thwarting the criminal proceedings, we see no error on behalf of the district court. The district
court acknowledged Bailey’s variance request and the advisory nature of the Guidelines but
explained why it believed Bailey’s offense supported application of the cross reference and a
within-Guidelines sentence. The district court labeled her conduct atrocious and “very, very
serious.” As to the fact that Bailey never acted on the threat, the court explained, “Whether there
was an acting out to carry through with the threat, or not, is I think almost irrelevant. Words can
be very blunt instruments, particularly here where they victimized people who had already been
victimized. It just added a layer of victimization on [top] of what happened to the young women
who were manipulated and poorly used by . . . Mr. Clayton.” The district court adequately
explained why it chose the sentence it did, even over Bailey’s objection that application of the
cross reference was too harsh. See Rayyan, 885 F.3d at 440.

       Bailey’s sentence was not procedurally unreasonable, as the district court appropriately
relied on § 2J1.2(c)(1)’s cross reference in setting her offense level. Because the cross reference
provided a higher offense level than the enhancement, we need not address whether the district
court was right to overrule Bailey’s objection to the enhancement.

                                               IV.

       Bailey also challenges the substantive reasonableness of her sentence. Her sentence, at
the very bottom of the Guidelines range, is afforded a presumption of reasonableness. United
States v. Parrish, 915 F.3d 1043, 1049 (6th Cir. 2019). Bailey has failed to overcome this
presumption.

       Bailey contends that the district court gave the cross reference too much weight given the
facts of her case, and that the cross reference “excessively punished her.” But in our analysis of
the procedural reasonableness of her sentence, we rejected the same arguments—finding both
 No. 18-2388                       United States v. Bailey                                  Page 7


that application of the cross reference was appropriate and that the district court adequately
explained why the egregiousness of Bailey’s conduct supported the sentence.

       Bailey also argues that the district court improperly weighed the § 3553(a) factors, both
by placing too much weight on general deterrence and by failing, given the cross reference, to
give greater emphasis to the remaining § 3553(a) factors. We see no indication of either. The
court explained why “general deterrence is particularly important in this case,” noting that
witness retaliation is “very, very serious.” And as described above, the court explained that it
believed Bailey’s conduct to be “atrocious” because victims of Clayton’s crimes—minors who
had been sexually exploited—were victimized a second time. On the other hand, the court
acknowledged the facts that might weigh in Bailey’s favor. For example, the court recognized
that Bailey, a single mother with a tenth-grade education, had “a difficult life,” but expressed
concern that she had “not made a whole lot of effort to deal with that.” The court allowed that,
around the time Bailey made her threats, Bailey’s sister had been killed in a car accident that also
seriously injured Bailey’s niece. The court recognized that Bailey had medical problems but
observed that they were treatable, and that Bailey had been non-compliant with her medical
treatment. And the court noted that this was Bailey’s first felony. After elaborating at length,
the district court sentenced Bailey to the bottom of the Guidelines range. Given the court’s
careful consideration of the facts and § 3553(a) factors, we see no indication the district court
abused its discretion in sentencing Bailey to the very bottom of the Guidelines range.

                                               ***

       We AFFIRM Bailey’s sentence.
