United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 17-3819
     ___________________________

          United States of America

     lllllllllllllllllllllPlaintiff - Appellee

                        v.

                Tywin Bender

   lllllllllllllllllllllDefendant - Appellant
     ___________________________

             No. 17-3820
     ___________________________

          United States of America

     lllllllllllllllllllllPlaintiff - Appellee

                        v.

                Tywin Bender

   lllllllllllllllllllllDefendant - Appellant
                   ____________

 Appeals from United States District Court
  for the District of Minnesota - St. Paul
              ____________
                             Submitted: April 15, 2019
                               Filed: June 24, 2019
                                   [Published]
                                  ____________

Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
                              ____________

PER CURIAM.

      In 2013, a gang war erupted in Minneapolis, resulting in an exchange of gunfire
between the members of rival gangs over the course of several months. As a result, the
government indicted a host of suspected gang members, including Tywin Bender, on
various gun charges. Bender pleaded guilty to conspiring to possess firearms as a
convicted felon. See 18 U.S.C. §§ 371, 922(g)(1). While awaiting sentencing, one of
Bender's codefendants proceeded to a trial where the government presented testimony
from two gang members—one in the same gang as Bender and one in the rival
gang—that provided context for their ongoing conflict. The jury found Bender's
codefendant guilty of the crimes charged against him.

       The day after his codefendant's conviction, an incarcerated Bender telephoned
a friend and instructed her to send an email to two fellow gang members housed in
another prison where the two witnesses were housed, giving them the "green light" to
"smash" the witnesses. Bender's friend did as he instructed, but prison authorities
intercepted one of the two emails before it reached its intended recipient, and they
later found a copy of the email in the other intended recipient's possession. The
government indicted Bender with conspiring to retaliate against a federal witness, see
18 U.S.C. § 1513(f), and after a trial a jury found him guilty of committing the
offense.




                                         -2-
       At sentencing the district court1 applied, over Bender's objection, an eight-level
enhancement to the Guidelines offense level on Bender's witness-retaliation
conviction because the court determined that "the offense involved causing or
threatening to cause physical injury to a person, or property damage, in order to
obstruct the administration of justice." USSG § 2J1.2(b)(1)(B). The court sentenced
Bender to sixty months in prison on the firearms conviction followed by a consecutive
seventy months in prison on the witness-retaliation conviction.

       Bender appealed, maintaining, among other things, that the district court erred
in applying the eight-level enhancement to the witness-retaliation charge. A panel of
this court vacated Bender's sentence on other grounds and remanded for resentencing
without addressing Bender's challenge to the enhancement. See United States v.
Parker, 871 F.3d 590, 607 (8th Cir. 2017). The issue arose again during resentencing,
and the district court2 again denied Bender's challenge to the enhancement. The
district court sentenced Bender to sixty months in prison on the firearms charge and
fifty-eight months in prison on the witness-retaliation charge.

      Bender appeals again, asserting that the court erred in applying the eight-level
enhancement to his offense level for the witness-retaliation charge. He maintains that
he cannot be viewed as a but-for cause to any threats made against the witnesses
because the intended recipients of his threatening missive knew, or should have
known, of those witnesses' testimonies, and those intended recipients stood "ready and
willing to impose a sanction" on the witnesses with or without Bender's permission
or encouragement. He argues that, under Burrage v. United States, 571 U.S. 204



      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, now retired.
      2
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.

                                          -3-
(2014), the government had to prove "Bender's efforts were the singular cause of the
threats, as opposed to incidental, tangential, [or] even contributing" causes.

       In Burrage, a defendant was convicted of unlawfully distributing heroin that
resulted in someone's death. Because a death resulted, the defendant faced a
mandatory minimum twenty-year sentence. The evidence showed that the decedent
combined the heroin with other substances and died, and experts opined only that the
heroin contributed to the decedent's death, not that the decedent would have lived but
for taking the heroin. The Supreme Court held that the defendant could not be held
responsible for the decedent's death since the heroin he distributed was not a but-for
cause of death. Id. at 218–19.

       Burrage simply has no application here. The enhancement Bender challenges
requires only that he "caus[e] or threaten[] to cause physical injury to a person, or
property damage, in order to obstruct the administration of justice." See USSG
§ 2J1.2(b)(1)(B). It does not require that Bender's acts cause some type of harm, such
as death, injury, or even an apprehension of retaliation; Bender triggered the
enhancement the moment he sent a threat by way of his friend. The offense was
complete. Because the action required to apply the enhancement occurred when
Bender dispatched his friend with the threatening message, we affirm the district
court's application of the eight-level enhancement under § 2J1.2(b)(1)(B).

      Affirmed.
                       ______________________________




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