                              RECOMMENDED FOR PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 20a0203p.06

                  UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                 ┐
                                  Plaintiff-Appellee,      │
                                                           │
                                                            >        No. 18-6210
       v.                                                  │
                                                           │
                                                           │
 STEVE ALLEN PRITCHARD,                                    │
                              Defendant-Appellant.         │
                                                           │
                                                           ┘

                         Appeal from the United States District Court
                   for the Western District of Kentucky at Bowling Green.
                  No. 1:16-cr-00028-1—Gregory N. Stivers, District Judge.

                                 Argued: October 23, 2019

                              Decided and Filed: July 7, 2020

              Before: CLAY, THAPAR, and NALBANDIAN, Circuit Judges.
                               _________________

                                          COUNSEL

ARGUED: Frank W. Heft, Jr., OFFICE OF THE FEDERAL DEFENDER, Louisville,
Kentucky, for Appellant. Terry M. Cushing, UNITED STATES ATTORNEY’S OFFICE,
Louisville, Kentucky, for Appellee. ON BRIEF: Frank W. Heft, Jr., Donald J. Meier, OFFICE
OF THE FEDERAL DEFENDER, Louisville, Kentucky, for Appellant. Monica Wheatley,
UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.

         NALBANDIAN, J., delivered the opinion of the court in which CLAY and THAPAR,
JJ., joined. CLAY, J. (pp. 22–24), delivered a separate concurring opinion.
 No. 18-6210                         United States v. Pritchard                           Page 2


                                      _________________

                                           OPINION
                                      _________________

       NALBANDIAN, Circuit Judge. Some men just want to watch the world burn. Others
start fires to collect insurance money. Steve Pritchard is the latter. But after playing with fire
several times, Pritchard’s penchant for profiting from arson took a deadly turn. Instead of only
damaging property, a fire started by Pritchard in June 2011 led to firefighter Charles Sparks’s
death. While responding to the fire, Sparks suffered a fatal heart attack. Although Pritchard
could have supposed that a firefighter would respond to the blaze, he had no reason to suspect
that Charles Sparks would arrive on the scene, bringing with him a history of coronary disease
and spotty use of his prescription medication. At issue is whether Pritchard caused Sparks’s
death within the meaning of the federal arson statute, 18 U.S.C. § 844(i).

       Pritchard’s appeal turns on first principles of causation. The common law typically
permits liability only when the perpetrator acts as both the but-for and the legal cause of the
harm. And that distinction often matters. Every fledgling law student knows that “a kingdom
might be lost ‘all for the want of a horseshoe nail,’” see Massachusetts v. EPA, 549 U.S. 497,
546 (2007) (Roberts, C.J., dissenting), but we still don’t hold the blacksmith responsible for the
defeat despite his faulty craftmanship’s role as the but-for cause. For that reason, laws that
invoke proximate causation generally impose liability when the harm was foreseeable. Under
18 U.S.C. § 844(i), Sparks’s death need only be “a direct or proximate result of [Pritchard’s]
conduct.” Because the government introduced testimony showing how firefighting can trigger a
heart attack, we find that the jury had sufficient evidence to hold Pritchard responsible for
Sparks’s death. Pritchard also alleges that the lower court committed various reversible errors,
including wrongly admitting propensity evidence, denying his motion to suppress cell phone data
seized by the government, and applying an unwarranted sentencing enhancement.              Those
arguments also lack merit. Thus, we AFFIRM.
 No. 18-6210                          United States v. Pritchard                            Page 3


                                                  I.

       This case involves a fire, a firefighter, and a fraudster. First, the fire. At 3:05 AM on
June 30, 2011, a 911 caller reported a fire at the Pritchard residence. Eleven minutes later,
firefighters, including Assistant Chief Charles Sparks, arrived on the scene. These firefighters
found the house engulfed in “[a] lot of fire, a lot of flames.” (R. 145, Trial Tr. Vol. 2 at PageID#
1055.) During the firefighting, Sparks lost consciousness. Personnel at the scene administered
CPR to Sparks and called for an ambulance. Although the emergency workers tried to revive
Sparks, who was not breathing and did not have a pulse, he never regained consciousness. Eight
days later, Sparks died after being taken off life support.

       Before fighting the fire on June 30, 2011, Sparks suffered from various medical ailments.
In 2005, Sparks had a heart attack that required inserting a stint in his coronary artery. Sparks
also suffered from coronary disease, hypertension, and diabetes—all of which are risk factors for
a heart attack. Around the time of his death, Sparks had not been taking his prescribed heart
medication or insulin to treat his diabetes.

       Brandi Pritchard, Steve Pritchard’s wife, clocked into work at 3:34 AM on June 30, 2011.
She worked about forty-five minutes away from her house, meaning she left for work around
2:45 AM. Around 7:00 AM that morning, Brandi received a call informing her that her home
was on fire.

       Now for the fraud. To Brandi’s purported surprise, Pritchard decided to drive her to
work that morning, telling her that it “would be a good morning to go ahead and start . . . this fire
in this house[.]” (R. 146, Trial Tr. Vol. 3 at PageID# 1352.) On the way to work, Pritchard
proclaimed, “I did it[,]” referring to the fire. (Id. at 1353.) Pritchard had arranged for Brandi’s
children and his dog to be out of the house that morning. Later, Brandi’s children would testify
that Pritchard showed them photographs of the fire he took from his phone and that Pritchard
implied he started the fire. And Dale Clark, a longtime acquaintance of Pritchard and Brandi,
also testified that Pritchard insinuated that he started the fire with Brandi’s help. Finally, Sherry
Waggoner, a friend of the Pritchards, recounted overhearing the couple argue about the fire. She
testified that Pritchard claimed to be “the genius in the project [and] . . . the one that master
 No. 18-6210                         United States v. Pritchard                           Page 4


planned it.” (R. 145, Trial Tr. Vol. 2 at PageID# 1143.) Sherry’s husband, Robbie Waggoner,
confirmed this conversation and that Pritchard took credit for the arson.

       Later that day, Pritchard picked Brandi up from work and instructed her on “what [she]
needed to say when [they] got [home].” (R. 146, Trial Tr. Vol. 3 at PageID# 1356.) Pritchard
wanted Brandi to tell investigators that he had spent the night in Louisville. And that’s the same
story he gave to the police. Yet Pritchard’s alibi did not withstand scrutiny. Cell tower records
revealed that Pritchard had not been in Louisville on the night of the fire. The government
obtained Pritchard’s cell-site location information (CSLI) without a warrant in July 2015, relying
on the warrant exception in the Stored Communications Act (SCA).

       June 30 wasn’t the first time Brandi heard about Pritchard’s plot. Brandi bought a
$50,000 insurance policy for the house six days before the fire. So when Pritchard learned about
the insurance policy, he remarked about “how easy it would be to burn the house down and get
the money for it.”     (Id. at 1335.)   At first, Brandi balked at Pritchard’s plan, finding it
“ludicrous[.]” (Id. at 1343.) To persuade Brandi, Pritchard recounted previous fires that he
started to collect insurance money, including burning down a house owned by Tena Gowen, the
couple’s close friend. He also mentioned setting a car belonging to Whitney Clark, his niece, on
fire to collect insurance money. And Pritchard discussed setting his own car on fire, as well as
the home of David Newcomb.

       After the fire, Brandi collected on her insurance policy. In the ensuing investigation of
the fire, carried out by Kentucky State Police and the FBI, Pritchard pressured Brandi to lie to
cover up the arson. When he became worried about Brandi’s resolve, Pritchard resorted to
threats of violence to coerce Brandi not to confess. In response, Brandi obtained multiple
protective orders against Pritchard.    Pritchard’s threats continued for years; after the FBI
interviewed Pritchard in 2014, he broke into Brandi’s house and threatened to harm her and her
children if she told the truth about the arson. Brandi eventually confessed to her role in the
arson, the insurance fraud, and the cover up.

       Following the investigation, a federal grand jury charged Pritchard and Brandi with
Malicious Destruction of Property by Fire, a violation of 18 U.S.C. § 844(i) that permits
 No. 18-6210                          United States v. Pritchard                            Page 5


punishment for arson causing death, and Mail Fraud under 18 U.S.C. § 1341. Brandi pleaded
guilty and Pritchard went to trial.

       At Pritchard’s trial, Dr. Thomas Hales, a physician for the National Institute for
Occupational Safety and Health, testified about risk factors relevant to Sparks’s death. Hales
concluded that firefighting “triggered” Sparks’s fatal heart attack. (Id. at 1313.) He also testified
that firefighting requires “a lot of heavy physical exertion” and recounted how studies show a
link between strenuous physical activity and cardiac malfunction. (Id. at 1258–64.) But he
could not conclude, given Sparks’s history, that Sparks would not have had a heart attack
independent of the fire. Dr. Divyesh Bhakta, who treated Sparks after his heart attack, testified
that Sparks’s untreated diabetes and failure to take his heart medicine produced “a number of
risk factors[.]” (R. 134, Trial Tr. Vol. 5 at PageID# 728–40.) He also could not conclude
whether the fire, and not these risk factors, caused Sparks’s heart attack. After hearing this
evidence, the jury found Pritchard guilty of arson causing death.

       Pritchard’s counsel made many objections before, during, and after trial. Before the trial,
he filed an unsuccessful motion to exclude evidence about Pritchard’s previous arsons and the
Emergency Protective Orders (EPOs) obtained by Brandi. During trial, he objected to the court’s
refusal to give his proposed jury instructions about proximate cause. He also argued that the
district court should not have admitted CSLI seized by the government because the officers
lacked a valid warrant for the search. So Pritchard moved to suppress, contending that admitting
the cell phone records violated the exclusionary rule. In addition, Pritchard’s counsel challenged
the relevancy of testimony given by the government’s expert witness, David West, about the
characteristics and motives shared by arsonists. And during sentencing, Pritchard’s counsel
argued against applying a two-level leadership enhancement to Pritchard’s sentence. The lower
court overruled these challenges.

       In sum, Pritchard received a sentence of 360 months for arson causing death and a
concurrent 240-month term for mail fraud. Pritchard now appeals his conviction and sentence.
 No. 18-6210                           United States v. Pritchard                              Page 6


                                                  II.

        An arsonist started a fire to collect insurance money. Then a firefighter lost his life
putting that fire out. Before us is whether the firefighter’s death was the “direct or proximate
result” of the arsonist’s actions, the predicate necessary for guilt under 18 U.S.C. § 844(i).
While ordinarily a straightforward question, this case poses a wrinkle: The firefighter had a
history of cardiac disease and passed away from a heart attack suffered during the fire.
Pritchard, who started the fire, tells us that he isn’t responsible for the firefighter’s existing heart
condition. But the government argues that Pritchard’s arson set in motion foreseeable events
where a firefighter could lose his life. In short, the parties ask us to decide the appropriate
causation standard for arson causing death under 18 U.S.C. § 844(i).

        As we must, we begin with the statute’s text. See Binno v. Am. Bar Ass’n, 826 F.3d 338,
346 (6th Cir. 2016). Section 844(i) permits punishment when “death results to any person,
including any public safety officer performing duties as a direct or proximate result of conduct
prohibited by this subsection[.]” 18 U.S.C. § 844(i) (emphasis added). Because the statute
covers unlawfully destroying a building or other property with fire, § 844(i) covers injuries
caused by Pritchard’s arson. See id. So this case turns on when, exactly, death is “a direct or
proximate result” of arson.

        Courts traditionally answer questions of causation by looking to the common law. See
United States v. Hayes, 589 F.2d 811, 821 (5th Cir. 1979) (“We adhere to the accepted practice
among federal courts in construing a federal criminal statute where specific terms are left
undefined. We give those terms their common law meaning.” (citing United States v. Turley,
352 U.S. 407, 430 (1957))). Addressing common law causation principles, the Supreme Court
remarked:    “The law has long considered causation a hybrid concept, consisting of two
constituent parts: actual cause and legal cause.” Burrage v. United States, 571 U.S. 204, 210
(2014) (citing H. Hart & A. Honore, Causation in the Law 104 (1959)). As with § 844(i),
“[w]hen a crime requires ‘not merely conduct but also a specified result of conduct,’ a defendant
generally may not be convicted unless his conduct is ‘both (1) the actual cause, and (2) the
“legal” cause (often called the “proximate cause”) of the result.’” Id. (quoting 1 W. LaFave,
Substantive Criminal Law § 6.4(a), pp. 464–66 (2d ed. 2003)). Just like the statute in Burrage,
 No. 18-6210                                 United States v. Pritchard                                       Page 7


§ 844(i) “does not define” its terms describing causation. See id. So following the framework
set out by the Supreme Court, it likely makes sense that the statute contemplates actual cause
when invoking direct cause. That’s because pairing actual cause and proximate cause would
reflect common law causation principles. But we need not address the exact meaning of “direct
cause” under § 844(i) because this case can be resolved on proximate causation grounds.1

         While proximate cause lacks a “precise definition,” proximate cause language generally
“inject[s] a foreseeability element into the statute.” Babbitt v. Sweet Home Chapter of Cmtys. for
a Great Or., 515 U.S. 687, 713 (1995) (O’Connor, J., concurring). And this Circuit understands
proximate cause as permitting liability even when a defendant’s “acts were not the immediate
cause of the victim’s death or injury.” United States v. Martinez, 588 F.3d 301, 319 (6th Cir.
2009) (quoting United States v. Guillette, 547 F.2d 743, 749 (2d Cir. 1976)).                              Typically,
proximate cause presents a narrower range of liability than an actual, or direct, cause. That’s
because it acts as a:

         limitation which the courts have placed upon the actor’s responsibility for the
         consequences of the actor’s conduct . . . [because] the causes of an event go back
         to the dawn of human events and beyond. But any attempt to impose


         1To  avoid redundancy, the text’s use of both types of causation in the alternative implies that they each
have a different meaning or add something unique to the legal analysis. See Rimini St., Inc. v. Oracle USA, Inc.,
139 S. Ct. 873, 881 (2019) (“If one possible interpretation of a statute would cause some redundancy and another
interpretation would avoid redundancy, that difference in the two interpretations can supply a clue as to the better
interpretation of a statute.”). Although the rule against surplusage is not always “a silver bullet[,]” the text here,
notably its use of the word “or,” provides two distinct types of causation. Id. That drafting decision suggests that
we should permit liability under § 844(i) for either direct or proximate causation.
        But the government does not separate the concepts of direct and proximate causation in its briefing,
choosing instead to contend generally that Pritchard’s actions were the “direct or proximate cause” of Sparks’s
death. To be fair, some formulations of proximate cause include a concept of directness within them. For instance,
Black’s Law Dictionary provides this secondary definition of proximate cause: “A cause that directly produces an
event and without which the event would not have occurred.” Cause, Black’s Law Dictionary (11th ed. 2019)
(emphasis added).
          And to further add to the confusion, the Restatement eschews the usage of the term proximate cause
entirely and finds the phrase inadequate to explain the general concept of limitations on scope of liability as a result
of remoteness or lack of foreseeability. See Restatement (Third) of Torts: Liability for Physical and Emotional
Harm ch. 6 Special Note on Proximate Cause (“Although the term ‘proximate cause’ has been in widespread use in
judicial opinions, treatises, casebooks, and scholarship, the term is not generally employed in this Chapter because it
is an especially poor one to describe the idea to which it is connected.”); see also id. § 29 cmt. b (“[T]he term
‘proximate cause’ is a poor one to describe limits on the scope of liability. It is also an unfortunate term to employ
for factual cause or the combination of factual cause and scope of liability.”). In any event, our analysis focuses on
what the Supreme Court and our Circuit have generally said about proximate cause.
 No. 18-6210                           United States v. Pritchard                           Page 8


       responsibility upon such a basis would result in infinite liability for all wrongful
       acts.

W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 264 (5th ed. 1984).

       Setting a necessary limit for imposing liability, this Circuit finds proximate causation
when a person suffers harm from events that “are foreseeable and naturally result from [the
defendant]’s criminal conduct[.]” Martinez, 588 F.3d at 319 (alteration in original) (quoting
Guillette, 547 F.2d at 749). In sum:

       A fundamental principle of criminal law is that a person is held responsible for all
       consequences proximately caused by his criminal conduct. Thus, where events
       are foreseeable and naturally result from one’s criminal conduct, the chain of
       legal causation is considered unbroken and the perpetrator is held criminally
       responsible for the resulting harm.

United States v. Wiegand, No. 93-1735, 1994 WL 714347, at *2–3 (6th Cir. Dec. 22, 1994)
(quoting Hayes, 589 F.2d at 821).

       Applying that proximate causation principle, this Circuit held that “[i]njury to a
firefighter is a foreseeable result of arson[.]” Id. at *3. But that applied to burns suffered during
firefighting. Id. at *1. Pritchard rightly observes that the facts here are different. Rather than
perishing from typical injuries sustained during firefighting, such as burns and trauma from
falling debris, Charles Sparks died from a heart attack. And evidence at trial showed that Sparks
had a pre-existing heart condition, along with other maladies, that he left untreated. That means,
according to Pritchard, Sparks’s failure to treat his condition and decision to keep fighting fires
with a diseased heart broke the chain of causation between Pritchard’s fire and Sparks’s death.

       Drawing on that observation, Pritchard contends that insufficient evidence supports his
conviction because the government did not show enough causation between Pritchard’s arson
and Sparks’s heart attack. First, he contends that his actions needed to be “the cause of death,”
and not simply “a cause of death.” (Appellant’s Br. at 20.) But Pritchard’s theory that there can
only be one cause of death sufficient for imposing liability flouts our precedent. See Hausrath v.
N.Y. Cent. R.R. Co., 401 F.2d 634, 637 (6th Cir. 1968) (“There may, of course, be more than one
proximate cause.”). Still, Pritchard argues that Sparks’s “heart attack could have occurred at
home due to diabetes or coronary artery disease” and the arson only acted as a “contributing
 No. 18-6210                         United States v. Pritchard                            Page 9


factor” that didn’t set the events of Sparks’s death in motion. (Appellant’s Br. at 22–23.)
Rephrased, Pritchard tells us that a firefighter dying from a heart attack wasn’t foreseeable when
he started the fire and there is not an unbroken causal link between starting the fire and Sparks’s
death. And we agree that this case isn’t as clear cut as Wiegand, where we held an arsonist liable
for causing the burns suffered by a firefighter because that injury was foreseeable and the causal
chain between the arson and the burns appeared unbroken. 1994 WL 714347, at *1–3.

       Still, a defendant raising a sufficiency of the evidence claim faces a high burden. That’s
because a court must determine “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Porter, 886 F.3d 562, 565 (6th Cir. 2018) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It’s true that Sparks suffered from serious
ailments, including diabetes and blocked arteries, and evidence showed that Sparks had not been
taking his prescribed heart medication or insulin for some time. So Pritchard contends that the
presence of these “other factors that could have been the cause” of Sparks’s heart attack means
the fire could not have proximately caused Sparks’s death. (Appellant’s Br. at 22.) But in
Martinez, we upheld a finding of proximate cause when a doctor’s improper treatment
contributed to a patient’s fatal overdose. 588 F.3d at 319–21. There, we denied a similar
insufficiency of the evidence claim. The jury found prescribing over the counter drugs and
performing nerve-block injections proximately caused the patient’s fatal overdose, even though
the patient had used narcotic drugs. Id. at 321–22. And we found those facts sufficient to affirm
a conviction.

       Martinez’s reasoning applies here. Even though Pritchard offered evidence that Sparks’s
pre-existing medical condition led to his death, the jury found an unbroken chain of causation
between the fire and Sparks’s heart attack. Just as we did not disturb a jury’s finding that the
patient’s “actions as an addict cannot be said to break the chain of proximate causation[,]” we do
not disturb the jury’s conclusion that Sparks’s medical ailments did not sever the causal link
between the fire and his death. Id. at 322. After all, the government entered evidence showing
that firefighting stresses the heart, meaning that heart attacks can be caused by responding to
arsons just like severe burns. And to show proximate cause, the government only needed to
 No. 18-6210                          United States v. Pritchard                          Page 10


enter sufficient evidence that Sparks’s death was a foreseeable and natural result of Pritchard’s
actions. Even though a heart attack might not be the most obvious injury for a firefighter to
suffer, the government entered evidence showing that firefighting strains the heart enough to
possibly trigger a heart attack.     So Pritchard isn’t really saying the jury lacked evidence
supporting its conviction; his actual complaint is that the jury sided with the government. In
short, Pritchard’s sufficiency of the evidence claim asks us to substitute our view for the jury’s,
which we refrain from doing. See Ratliff v. Wellington Exempted Vill. Schs. Bd. of Educ.,
820 F.2d 792, 795 (6th Cir. 1987).

       Despite listing proximate and direct causes as distinct terms, § 844(i) permits liability for
an arson that either proximately or directly causes a firefighter’s death. Because the jury relied
on evidence showing Pritchard proximately caused Sparks’s death, a direct causation analysis is
unnecessary. We affirm Pritchard’s conviction for arson causing death.

                                                 III.

       Pritchard not only challenges his conviction by offering a causation theory, but also
applies that principle to the jury instructions given over § 844(i). This argument repackages his
complaint that the court below relied on an overly broad understanding of causation. That’s
because Pritchard believes that he could only be guilty if he was the cause of the death, and not a
cause of the death. Just like he argued that the trial evidence didn’t support a finding that he
acted as more than a contributing factor in Sparks’s death, Pritchard complains that the district
court provided jury instructions permitting a conviction if Pritchard’s actions were a cause of
death and not the cause of death. He made that distinction in his proposed jury instructions,
which the district court did not adopt. We review the legal accuracy of jury instructions de novo.
United States v. Roth, 628 F.3d 827, 833 (6th Cir. 2011). But a district court’s refusal to give an
instruction requested by the defendant must amount to abuse of discretion in order for us to
vacate a judgment. Id.

       At trial, the judge gave this instruction to the jury:

       The death of Charles Sparks resulted from the Defendant’s conduct if the
       Defendant’s conduct was a direct and proximate cause of Charles Sparks’ death.
       The Defendant’s conduct was a direct and proximate cause of Charles Sparks’
 No. 18-6210                                 United States v. Pritchard                                     Page 11


          death if it was a substantial factor in causing him to die, and he would not have
          died except for the Defendant’s conduct.

(R. 101, Jury Instr. at PageID# 364.) Pritchard alleges that the trial court erred by rejecting his
proposed instructions under which he needed to be “the direct and proximate cause” of Sparks’s
death. (Appellant’s Br. at 25.) So, according to Pritchard, the jury convicted him under an
overly permissive causation standard.               That’s doubly true, Pritchard tells us, because the
instruction permitted guilt for being a substantial factor in Sparks’s death. This alleged mistake
made it harder for Pritchard to argue that guilt could only be found under § 844(i) if Sparks’s
firefighting, and not his medical condition, triggered the heart attack.                       In short, Pritchard
contends that the instruction’s wording wrongly permitted guilt if Pritchard was a cause of death,
and not the cause of death. But his proposed jury instruction didn’t track the statutory language,
which unambiguously covers injuries that are “a direct or proximate result of conduct prohibited
by this subsection[.]” 18 U.S.C. § 844(i) (emphasis added).

          Because Pritchard challenges the district court’s “failure to give the requested
instruction[,]” we review for abuse of discretion. (Appellant’s Br. at 25–26.) And we only find
that a district court abused its discretion over jury instructions “if the instructions, viewed as a
whole, were confusing, misleading and prejudicial.”                     Williams v. Eau Claire Pub. Schs.,
397 F.3d 441, 445 (6th Cir. 2005) (quoting Kitchen v. Chippewa Valley Schs., 825 F.2d 1004,
1011 (6th Cir. 1987)). What’s more, a proposed jury instruction must be “a correct statement of
law[.]”     Id.   In short, Pritchard’s proposed jury instruction departed from the language of
§ 844(i), yet now he complains about the district court’s decision to issue an instruction that
more closely mirrored the statute.2 We cannot conclude the district court abused its discretion in


          2We   note that the challenged jury instruction isn’t without warts. To start, § 844(i) creates criminal
liability for “a direct or proximate” cause and not “direct and proximate” causation, as stated by the district court’s
instructions. Unsurprisingly, Pritchard didn’t make that observation because the district court’s language implies a
more stringent causal requirement. But we also note that the district court relied on “substantial factor” and but-for
causation concepts without expanding on those terms. So the jury arguably did not receive proper instructions on
the meaning of “direct or proximate” cause as discussed in Section II above. We believe that proper instruction on
this issue touches on foreseeability and breaking the causal chain.
          A good example comes from Martinez. There, the judge informed the jury that:
                  Proximate or direct cause exists where the acts of the Defendant . . . in a natural and
          continuous sequence directly produces the deaths and without which they would not have
          occurred. The Defendant is not responsible . . . if his alleged [criminal act] is a remote cause and
 No. 18-6210                               United States v. Pritchard                                    Page 12


denying Pritchard’s proposed instruction in favor of language more faithful to the statute. So
Pritchard’s challenge to the jury instruction falls short.

                                                        IV.

        During trial, the district court admitted evidence that (1) Pritchard set four previous fires;
(2) his wife, Brandi, obtained Emergency Protective Orders (EPOs) against him; and (3) opined
about what motivates arsonists. Pritchard believes these admissions violated the Federal Rules
of Evidence. So he requests a new trial where the jury would not be exposed to this allegedly
inadmissible and prejudicial evidence.

        We typically review challenges to evidentiary admissibility for abuse of discretion. See
United States v. Mack, 258 F.3d 548, 553 n.1 (6th Cir. 2001) (“[W]e conclude that the
appropriate standard of review for the admissibility of evidence under Rule 404(b) is ‘abuse of
discretion.’”); United States v. Collins, 799 F.3d 554, 572 (6th Cir. 2015) (“We review a district
court’s admission or exclusion of evidence for abuse of discretion.”). For challenges to the
introduction of evidence under Federal Rule of Evidence 404(b), we have also used a three-step
process:

        [W]e first review for clear error the district court’s factual determination that the
        “other . . . acts” occurred. Second, we examine de novo the district court’s legal
        determination that the evidence was admissible for a legitimate purpose. Finally,
        we review for abuse of discretion the district court’s determination that the
        probative value of the other acts evidence is not substantially outweighed by its
        unfairly prejudicial effect.



        not a proximate or direct cause of the deaths. A cause or condition is remote when the result could
        not have been reasonably foreseen or anticipated as being the likely cause of the deaths. The
        causal connection is broken when another’s act, which could not have been reasonably foreseen
        and is fully independent of the Defendant’s alleged [criminal act], intervenes and completely
        breaks the effect of Defendant’s conduct and such other acts become the proximate cause of the
        deaths.
J.A. Volume II at 807–08, Martinez, 588 F.3d 301 (Nos. 06-3882, 06-4206). Although this jury instruction applies
to a statute with different language than § 844(i), it touches on key causation concepts absent from the instruction
used in Pritchard’s trial. That said, Pritchard doesn’t complain about any error in the instructions aside from the
court’s decision to use a instead of the. Even though appellate courts are not “hidebound by the precise arguments
of counsel” made below, we cannot stage a “takeover of the appeal.” United States v. Sineneng-Smith, 140 S. Ct.
1575, 1581 (2020). So we decline to consider whether any unchallenged flaws in the jury instructions impact
Pritchard’s appeal.
 No. 18-6210                        United States v. Pritchard                           Page 13


United States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir. 1996) (second alteration in original).
Although previous rulings from this Court suggest “an intra-circuit split” over the standard of
review for Rule 404(b) evidence, using the three-step test and reviewing for abuse of discretion
are not necessarily inconsistent. See United States v. Mandoka, 869 F.3d 448, 456–57 (6th Cir.
2017). And both standards produce the same result for Pritchard, so we need not delve into that
ambiguity. Finally, we are mindful that harmless evidentiary errors do not permit us to vacate a
conviction. United States v. Hardy, 643 F.3d 143, 153 (6th Cir. 2011).

                                               A.

       Pritchard argues that the district court erred by admitting evidence about previous fires he
started because that evidence only shows a propensity for criminality. And that legal proposition
is true: The government cannot introduce past crimes as evidence of the defendant’s propensity
to commit a crime at issue. United States v. Clay, 667 F.3d 689, 693–94 (6th Cir. 2012). That’s
because showing propensity to commit a crime, either as to a specific offense or in general,
unfairly prejudices the jury over the defendant’s guilt. See Old Chief v. United States, 519 U.S.
172, 180–81 (1997) (“[I]mproper grounds [for admitting evidence] certainly include
. . . generalizing a defendant's earlier bad act into bad character and taking that as raising the
odds that he did the later bad act now charged (or, worse, as calling for preventive conviction
even if he should happen to be innocent momentarily).”).

       That said, Federal Rule of Evidence 404(b) provides exceptions for introducing a
defendant’s prior crimes or bad acts for non-propensity purposes, including: “proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Just because evidence, such as a past conviction, might not be admissible to show
propensity doesn’t automatically mean the district court erred by admitting it. In short, the
question becomes whether the fires Pritchard previously set fall under a recognized propensity
evidence exception.

       Pritchard’s previous arsons played a role in his plan to set fire to his wife’s house. To
convince Brandi to join his plot, he told her about his previous arsons. So Pritchard used his
prior bad acts to influence Brandi. This scenario is much like United States v. Holley, 57 F.
 No. 18-6210                        United States v. Pritchard                          Page 14


App’x 639 (6th Cir. 2003) (order), where the government introduced evidence of the defendant’s
past arson in proving a second arson. Just like Pritchard, the defendant in Holley bragged about
his previous arson to “recruit” a co-arsonist. Id. at 641. For that reason, we found that evidence
of a past arson fits into the Rule 404(b) “preparation and planning” exceptions. Id. Although
Pritchard’s past arsons might look like propensity evidence at face value, his reliance on his
previous bad acts to attract a co-arsonist and develop his insurance fraud plan falls under a Rule
404(b) exception.

       That gives us enough to perform the Merriweather test. First, we review the district
court’s conclusion that the acts occurred for clear error. Plenty of testimony supports Pritchard
committing the previous arsons and the record lacks evidence to the contrary. So there’s no clear
error in finding that Pritchard’s prior bad acts took place. Next, we consider de novo whether the
evidence should have been admitted under Federal Rule of Evidence 404(b). As discussed
above, the previous arsons fall under a recognized Rule 404(b) exception to the prohibition on
propensity evidence. Finally, we ask if the prejudicial effect of introducing the previous arsons
substantially outweighed the probative value of doing so. Like the district court, we recognize
evidence that Pritchard committed arson in the past might prejudice a jury. But we cannot deny
the probative value of showing Pritchard’s thought process in plotting the arson and his attempt
to recruit Brandi as his aide. Because the prejudicial effect of this admission must substantially
outweigh the probative value under Merriweather, Pritchard loses under this prong too.
All considered, we cannot conclude that the district court erred by admitting Pritchard’s past
arsons as evidence.

                                               B.

       As for the three EPOs obtained by Brandi, Pritchard contends that they are irrelevant and
thus inadmissible under Federal Rule of Evidence 401. In short, he argues the EPOs unfairly
portrayed him as a “an abuser,” which has nothing to do with his guilt for the arson that caused
Sparks’s death. (Appellant’s Br. 35.) Pritchard tells us that Brandi obtained: (1) the September
2011 EPO because of a drunken threat; (2) the February 2013 EPO over a threat at knife point;
and (3) the 2014 EPO because Pritchard broke into her house and threatened her. (Id.) From
that perspective, none of those EPOs relates to the fire. It would follow that they didn’t make
 No. 18-6210                         United States v. Pritchard                          Page 15


any fact in consequence more or less probable at trial, rendering the EPOs irrelevant (and thus
inadmissible) under Federal Rule of Evidence 401.

       Yet this argument ignores why Brandi might have sought the EPOs. Because Brandi
knew the truth about the fire, Pritchard allegedly threatened her throughout the investigation to
prevent her from confessing. And all of the EPOs occurred during a period where Pritchard had
been threatening Brandi, as well as her children, to prevent her confession. The prosecution
introduced the EPOs to show that Brandi was afraid of Pritchard and to support her testimony
that Pritchard used threats of violence to coerce her into lying to investigators. So the EPOs
make it more likely that Pritchard committed the crime because they corroborate his coverup
efforts. Considering “[t]his Circuit applies an ‘extremely liberal’ standard for relevancy[,]” the
EPOs are relevant because they support facts pointing to Pritchard’s guilt. United States v.
Ramer, 883 F.3d 659, 681 (6th Cir. 2018) (quoting United States v. Collins, 799 F.3d 554, 578
(6th Cir. 2015)). Thus, we find that admitting the EPOs didn’t violate Federal Rule of Evidence
401. What’s more, the EPOs are probative of Pritchard’s guilt by showing how he coerced
Brandi to cover up the crime. So the EPOs’ prejudicial effect of labeling Pritchard as an abuser
does not render them inadmissible. As a result, we uphold the district court’s decision to admit
the EPOs into evidence.

                                                C.

       Finally, Pritchard’s argues that the government improperly introduced David West’s
expert testimony at trial about what motivates arsonists. West testified that arsonists derive
excitement and gratification from setting fires and often watch the fire or take pictures of the
fire’s aftermath as a memento. He also suggested that arsonists generally have financial motives.

       Again, Pritchard claims the district court violated Federal Rules of Evidence 401 and 403
by admitting irrelevant and prejudicial evidence. Prichard argues that giving general evidence
about the habits and traits of arsonists doesn’t make his guilt any more or less probable. On top
of that, Pritchard contends that offering general motivations for arson and attributing them to him
created prejudice because it made the jury associate him with arson. Alleging that the evidence
lacked probative value because the government gave no supporting evidence about Pritchard’s
 No. 18-6210                          United States v. Pritchard                           Page 16


motivation, Pritchard concludes that the prejudicial value of the expert testimony substantially
outweighed its probative value.

       The government responds that this Circuit already found expert testimony about
arsonists’ general behavior admissible in United States v. Rayborn, 495 F.3d 328, 334 (6th Cir.
2007). But that’s not the entire truth. In Rayborn, the expert testified about how arsonists tend
to set fires—for example they “commonly use paper as an accelerant” and “typically” pour
flammable liquid in certain patterns. Id. So Rayborn does not settle whether testimony about the
intrinsic motivation of arsonists is relevant under Rule 401. Although we do not permit any
conceivably mitigating or harmful evidence as relevant, this Court has noted that the “Federal
Rules are extremely permissive as to what evidence is relevant.” Wood v. Wal-Mart Stores E.,
LP, 576 F. App’x 470, 473 (6th Cir. 2014).

       West’s testimony here meets that minimal standard. He explained that, based on his
expert knowledge, taking pictures of a fire fits the profile of an arsonist.           So Pritchard
photographing the fire and showing those images off to Brandi’s children made it more likely
that he started the fire.   This distinguishes Pritchard’s case from United States v. Taylor,
814 F.3d 340, 362 (6th Cir. 2016), abrogated on other grounds by United States v. Richardson,
948 F.3d 733 (6th Cir. 2020), where we found that statistics and “generalized facts that could be
said to apply to every . . . offender” were not relevant to the specific defendant’s case. Because
West’s testimony ties to specific facts in the record supporting Pritchard’s guilt, that testimony is
both relevant and probative. Thus, the district court committed no error by admitting West’s
testimony.

       One last point: Even if admitting the above evidence violated the Federal Rules of
Evidence, Pritchard would still need to show the district court’s error wasn’t harmless. Hardy,
643 F.3d at 153. But when the “record evidence of guilt is overwhelming” independent of the
allegedly offending evidence, admitting that evidence is harmless and does not permit vacating a
conviction. Id. Given Brandi’s testimony, testimony from neutral parties, and Pritchard’s faulty
alibi, the jury had enough evidence to convict Pritchard without relying on his prior bad acts, the
EPOs, or West’s expert testimony. So any error in admitting that evidence would be harmless.
 No. 18-6210                           United States v. Pritchard                             Page 17


                                                  V.

       Relying on Carpenter v. United States, 138 S. Ct. 2206 (2018), Pritchard argues that the
district court should have suppressed evidence of his cell-site location between June 1, 2011 and
July 31, 2011. The government, without a warrant, obtained CSLI showing the whereabouts of
Pritchard’s cell phone after receiving a court order in 2015.            This information disproved
Pritchard’s alibi of being in Louisville when the fire started. Fourteen days before Pritchard’s
trial began, the Supreme Court decided Carpenter. There, the Court found that warrantless
seizure of CSLI under the SCA violated the Fourth Amendment. Id. at 2221. So Pritchard
asserts that his allegedly improperly seized CLSI should have been barred at trial by the
exclusionary rule. Although it’s true that Carpenter prohibits warrantlessly seizing CSLI, this
case is not about what the government can do post-Carpenter. Instead, we ask if the government
acted in good faith considering the status of the law when it seized Pritchard’s CSLI. Illinois v.
Krull, 480 U.S. 340, 349–50 (1987) (confirming that the exclusionary rule generally does not
apply to evidence obtained in good-faith reliance on a statute before it was declared
unconstitutional).

       It’s black letter law that good-faith reliance on a statutory warrant exception can excuse
an officer’s failure to obtain an otherwise-necessary warrant. See United States v. Parrish,
942 F.3d 289, 293 (6th Cir. 2019) (“[C]ourts will not exclude evidence from trial that was
seized ‘by officers reasonably relying on a warrant issued by a detached and neutral magistrate.’”
(quoting United States v. Leon, 468 U.S. 897, 913 (1984))). That means as long as an officer
relies on a statute in good faith to perform a warrantless search, the fruits of that search are
admissible at trial. This is true even if that statute is later found unconstitutional. United States v.
Buford, 632 F.3d 264, 271 (6th Cir. 2011) (“[T]he Supreme Court has held suppression is not an
available remedy when police officers conducted a search in good faith reliance on some higher
authority, such as a warrant or a statute, even if the warrant or statute were later held invalid or
unconstitutional (the ‘good faith exception’).” (quoting United States v. Gonzalez, 598 F.3d
1095, 1101 (9th Cir. 2010) (Bea, J. dissenting from the denial of rehearing en banc))). But this
standard does not preclude all challenges to warrantless searches—the exclusionary rule bars
evidence seized when an officer did not rely on a statute in good faith to execute the offending
 No. 18-6210                           United States v. Pritchard                          Page 18


search or seizure. Indeed, officers do not rely on a statute in good faith “if [the statute’s]
provisions are such that a reasonable officer should have known that the statute was
unconstitutional.” Krull, 480 U.S. at 355.

        Pritchard claims that our precedent would not have permitted an officer to conduct
warrantless CSLI searches under the SCA when the government seized his CSLI in 2015. He
relies on United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010), where this Circuit found
that a warrantless seizure of private emails under the SCA violated the Fourth Amendment. In
that case, we applied the good-faith exception, but explained that “after today’s decision,” our
“good-faith calculus has changed, and a reasonable officer may no longer assume that the
Constitution permits warrantless searches of private emails.” Id. at 289 n.17. Pritchard argues
that this holding means that the government could not have relied on the SCA in good faith to
collect his CSLI data post-Warshak.

        The government disagrees that Warshak prohibited good-faith reliance on the SCA’s
warrant exception, at least for CSLI. It counters Pritchard’s reasoning by citing United States v.
Pembrook, 876 F.3d 812, 823 (6th Cir. 2017), vacated on other grounds by Calhoun v. United
States, 139 S. Ct. 137 (2018), where this Circuit denied the defendants’ motion to suppress CSLI
seized in 2014 without a warrant. Rejecting the defendants’ Fourth Amendment claim, we found
that no precedent, binding or otherwise, established the need for a warrant to seize CSLI under
the SCA. Id. So, as of 2014, courts in our jurisdiction had “no constitutional reason to suppress
. . . cell-tower location evidence.” Id.

        That takes us back to the controlling issue: How did the law appear to a reasonable
officer when the government seized Pritchard’s CSLI in 2015? In Pembrook, this Court scoured
caselaw both within and outside our Circuit and determined that, as of 2014, criminal defendants
had no Fourth Amendment protections against warrantless seizures of CSLI.            Id.    Absent
evidence that our Fourth Amendment precedent changed until the 2018 Carpenter decision, it
would be strange to locate such a protection in 2015. Surely if no caselaw or statutory language
existed to negate an officer’s good-faith belief that warrantless CSLI seizures were permissible
in 2014, then a Fourth Amendment sea change impacting a 2015 CSLI seizure would not have
gone undetected or unannounced.
 No. 18-6210                               United States v. Pritchard                                    Page 19


        Proving this point, Pritchard doesn’t argue that any opinion or legislation altered
Pembrook.       Instead, he claims that Warshak preceded Pembrook and gave a contradictory
holding. Thus, he argues that Pembrook was never good law because it violated this Circuit’s
precedent when issued. But this ignores the major difference between Warshak and Pembrook:
Warshak concerned the seizure of private emails while Pembrook spoke directly about CSLI.3
Private written communications have long enjoyed protection from unreasonable searches and
seizures under the Fourth Amendment.                See Carpenter, 138 S. Ct. at 2264 (Gorsuch, J.,
dissenting) (“Under its plain terms, the [Fourth] Amendment grants you the right to invoke its
guarantees whenever one of your protected things (your person, your house, your papers, or your
effects) is unreasonably searched or seized. Period.”).                 But until Carpenter, courts didn’t
routinely grant similar protection to data, held by a third party, revealing a person’s location,
such as CSLI. So in a post-Pembrook, pre-Carpenter world, reasonable officers had every
reason to believe in the constitutionality of collecting CSLI without a warrant under the SCA.

        What’s more, this Circuit already found that warrantless CSLI searches under the SCA
performed before Carpenter stemmed from good-faith reliance on the SCA.                               Carpenter,
926 F.3d at 318 (“The Government’s acquisition of Carpenter’s CSLI violated the Fourth
Amendment. The district court nevertheless properly denied suppression because the FBI agents
relied in good faith on the SCA when they obtained the data.” (emphasis added)). This ruling
concerns warrantless CSLI collection post-Warshak, meaning it covers the period at issue in
Pritchard’s case. Id. at 318. As a result, pre-Carpenter reliance on the SCA for warrantless
CSLI collection doesn’t permit the sort of claim Pritchard raises.

        Thus, a reasonable officer, when the government seized Pritchard’s CSLI in 2015, could
have relied on the SCA in good faith to obtain that data without a warrant. So we affirm the

        3This   Circuit alluded to this distinction when hearing Carpenter on remand. United States v. Carpenter,
926 F.3d 313, 318 n.1 (6th Cir. 2019) (“Although Warshak announced a prospective rule barring the warrantless
search of a suspect’s private emails under [the SCA], the court did not address any other circumstances where
reliance on [the SCA] might be unreasonable. The decision in Warshak therefore would not have alerted the agents
in Carpenter’s case to the unconstitutionality of seeking the CSLI at issue here.”), reh’g granted on other grounds,
788 F. App’x 364 (6th Cir. 2019); see also In re United States for Historical Cell Site Data, 724 F.3d 600, 611–12
(5th Cir. 2013) (discussing the difference between collecting CSLI and searching email servers under the SCA
before the Supreme Court’s decision in Carpenter), abrogation recognized by United States v. Beverly, 943 F.3d
225 (5th Cir. 2019).
 No. 18-6210                         United States v. Pritchard                          Page 20


district court’s denial of Pritchard’s motion to suppress CSLI evidence showing his location
during the arson.

                                               VI.

       Apart from his conviction, Pritchard challenges the two-level sentencing enhancement he
received under U.S.S.G. § 3B1.1(c).       The language of U.S.S.G. § 3B1.1(c) reads: “if the
defendant was an organizer, leader, manager, or supervisor in any criminal activity” that
involved four or fewer participants and was not otherwise extensive, “increase by 2 levels.” And
comments to § 3B1.1 provide factors for applying the leadership enhancement. These include:

       the exercise of decision making authority, the nature of participation in the
       commission of the offense, the recruitment of accomplices, the claimed right to a
       larger share of the fruits of the crime, the degree of participation in planning or
       organizing the offense, the nature and scope of the illegal activity, and the degree
       of control and authority exercised over others.

U.S.S.G. § 3B1.1 cmt. n.4. Pritchard claims the district court erred by applying § 3B1.1 for
leading Brandi in the arson and the coverup, thereby imposing a procedurally unreasonable
sentence. So he asks us to vacate his sentence and remand to correct this allegedly erroneous
sentencing calculation. “This court reviews sentencing enhancements under Section 3B1.1 with
deference.” United States v. Rodriguez, No. 18-2396, 2019 WL 7187346, at *3 (6th Cir. Dec.
26, 2019) (citing United States v. Washington, 715 F.3d 975, 982–83 (6th Cir. 2013)).

       Disputing the § 3B1.1 leadership enhancement, Pritchard argues both that Brandi acted as
an “equal participant” in the criminal offenses and that “she refused to go along with the scheme
every time it was mentioned.” (Appellant’s Br. at 52.) From Pritchard’s account, Brandi helped
start the fire and Brandi herself filed the fraudulent insurance claim. This shows, according to
Pritchard, that he lacked “managerial control over other [criminal] participants.” United States v.
Wright, 747 F.3d 399, 412 (6th Cir. 2014) (quoting United States v. Vandeberg, 201 F.3d 805,
811 (6th Cir. 2000)). That allegedly shows a sentencing error because only control over others in
the criminal activity, not mere suggestion to commit a crime, generally warrants a § 3B1.1(c)
leadership enhancement. U.S.S.G. § 3B1.1 cmt. n.4.
 No. 18-6210                        United States v. Pritchard                         Page 21


       But as much as Pritchard wants to paint Brandi as a co-equal arsonist or an independent
actor outside his control, that simply isn’t what the record shows. Pritchard came up with the
idea for arson, presented it to Brandi for recruitment purposes, tried to sway her when she
resisted, bragged about being a “genius” at arson-based insurance fraud, planned the logistics of
the fire, directed the coverup, and threatened domestic violence to execute the coverup. Thus,
Brandi acted under Pritchard’s control while (1) planning the fire, (2) committing the coverup,
and (3) submitting a fraudulent insurance claim. So we uphold the district court’s decision to
apply a § 3B1.1 sentencing enhancement.

                                              VII.

       For the above reasons, we AFFIRM Pritchard’s conviction and sentence.
 No. 18-6210                          United States v. Pritchard                           Page 22


                                        _________________

                                          CONCURRING
                                        _________________

       CLAY, Circuit Judge, concurring.          I concur in the majority’s judgment but write
separately to note my disagreement with a small, but important, piece of its analysis.
Specifically, the majority unnecessarily and wrongly analyzes the meaning of the phrase “a
direct . . . result.” See 18 U.S.C. § 844(i) (establishing that individuals may be subject to any
term of imprisonment or to the death penalty “if death results to any person, including any public
safety officer performing duties as a direct or proximate result of conduct prohibited by this
subsection”) (emphasis added). The majority suggests that Congress contemplated “actual”—
sometimes referred to as “but-for”—causation when it used this phrase, thus allowing a
defendant to be convicted under § 844(i) based on a showing of either actual or proximate
causation. I disagree, but nevertheless concur because, as the majority acknowledges, this
analysis is unnecessary to this case’s result and therefore constitutes dicta.

       At bottom, the majority’s interpretation of “direct . . . result” is simply incorrect. “Direct
cause” is not another term for “actual cause,” but is instead a synonym for “proximate cause.”
See Cause, Black’s Law Dictionary (11th ed. 2019). While the majority invokes common law to
find otherwise, the Supreme Court has clearly explained that that “among the many shapes [that
proximate cause] took at common law was a demand for some direct relation between the injury
asserted and the injurious conduct alleged.” Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268
(1992) (citation omitted); accord, e.g., Paroline v. United States, 572 U.S. 434, 444 (2014);
Hemi Grp., LLC v. City of New York, 559 U.S. 1, 9 (2010); Bridge v. Phoenix Bond & Indem.
Co., 553 U.S. 639, 654 (2008); see also Babbitt v. Sweet Home Chapter of Cmtys. for a Greater
Or., 515 U.S. 687, 732–33 (Scalia, J., dissenting) (“In fact ‘proximate’ causation simply means
‘direct’ causation.”). We have interpreted “proximate cause” similarly. See, e.g., Lopez Sosa v.
Barr, 780 F. App’x 307, 309 (6th Cir. 2019) (interpreting asylum statute and concluding that, “to
use the tools of proximate causation, the statute requires a ‘direct relationship’ between the social
group and the harm” (quoting Hemi Grp., LLC, 559 U.S. at 10)); Crosby v. Twitter, Inc.,
921 F.3d 617, 624 (6th Cir. 2019) (agreeing that “proximate cause requires some ‘directness’
 No. 18-6210                           United States v. Pritchard                         Page 23


between the tortious conduct and the injury”). The legislative history of § 844(i) confirms this
meaning. According to a Senate Committee on the Judiciary report, “[t]he Committee intends
that a death or injury is a direct or proximate result of conduct proscribed in subsection 844 . . .
(i) if it is reasonably foreseeable.” S. Rpt. 98-225, at 359 (1983). Foreseeability is, of course, a
critical component of the proximate cause inquiry.

        The majority acknowledges that “some formulations of proximate cause include a
concept of directness within them,” but reasons that Congress must have meant actual causation
because proximate and actual causation typically go hand in hand and because the rule against
surplusage suggests that “direct . . . result” must mean something different than “proximate
result.” Neither point justifies its interpretation.

        First, far from ensuring that actual and proximate causation remain paired, the majority’s
proposed interpretation does just the opposite. In the central case cited by the majority, Burrage
v. United States, 571 U.S. 204 (2014), the Supreme Court explained that “[w]hen a crime
requires ‘not merely conduct but also a specified result of conduct,’ a defendant generally may
not be convicted unless his conduct is ‘both (1) the actual cause, and (2) the “legal” cause (often
called the “proximate cause”) of the result.’” Id. at 210 (emphasis added) (quoting 1 W. LaFave,
Substantive Criminal Law § 6.4(a), pp. 464–466 (2d ed. 2003)). Interpreting “direct . . . result”
as referring to proximate cause comports with this rule because a proximate cause of an event is
generally also an actual cause of it. Paroline, 572 U.S. at 444 (explaining that proximate cause
means both that an event actually caused another event and that the two events are sufficiently
connected). An actual cause of an event, on the other hand, is frequently not also a proximate
cause. Cf. Burrage, 571 U.S. at 211 (recognizing that actual causation “represents ‘the minimum
requirement for a finding of causation when a crime is defined in terms of conduct causing a
particular result’” (alteration in original) (quoting Model Penal Code § 2.03(1)(a) explanatory
note)). By interpreting § 844(i) as allowing conviction based on a showing of actual causation
alone, the majority thus dramatically expands the scope of conduct covered by the statute. This
runs counter to the purpose of pairing the two types of causation in the first place. See Paroline,
572 U.S. at 448 (explaining that requiring proximate cause ensures that a law does not apply in
 No. 18-6210                          United States v. Pritchard                           Page 24


“situations where the causal link between conduct and result is so attenuated that the so-called
consequence is more akin to mere fortuity”).

       Second, while courts should interpret statutes to avoid surplusage, that rule does not
compel the majority’s conclusion here. As the majority acknowledges, “proximate cause” is an
imprecise concept. Accordingly, I understand the addition of “direct . . . result” as simply
clarifying what “proximate result” means by focusing courts’ inquiry on the issue of remoteness.
Where a phrase is otherwise unclear, adding an explanatory phrase is not redundant.

       The majority’s analysis is not simply unjustified—it runs counter to binding case law.
“Especially in the interpretation of a criminal statute subject to the rule of lenity, we cannot give
the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the
defendant.” Burrage, 571 U.S. at 216 (citation omitted). As discussed, the most common
meaning of “direct cause” is similar to that of “proximate cause.” To my eyes, § 844(i) thus
unambiguously requires a showing of proximate causation, and “direct . . . result” simply
confirms this point. However, even if that phrase could also be interpreted to refer to actual
causation, it would be at most ambiguous and the rule of lenity would require this Court to
interpret it in defendants’ favor. See United States v. Bass, 404 U.S. 336, 347 (1971) (“In
various ways over the years, we have stated that ‘when choice has to be made between two
readings of what conduct Congress has made a crime, it is appropriate, before we choose the
harsher alternative, to require that Congress should have spoken in language that is clear and
definite.’” (quoting United States v. Universal C.I.T. Credit Corp., 334 U.S. 218, 221–22
(1952))).

       Finally, and perhaps most importantly, the majority’s interpretation of this portion of the
statute is not necessary to our ultimate resolution of this appeal. Nor did the parties present this
matter for our consideration or provide any briefing to inform our analysis. Under any possible
interpretation of § 844(i), a defendant may properly be convicted based on a showing of
proximate cause, and the panel agrees that Pritchard proximately caused Sparks’s death. The
majority recognizes as much, but presses its interpretation anyway. Fortunately, the majority’s
analysis regarding the meaning of “direct . . . result” is dicta and, as such, will not bind any
future panel to be confronted with this issue. I therefore concur in the judgment.
