                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0487n.06

                                           No. 19-1220

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                  Aug 19, 2020
 UNITED STATES OF AMERICA,                               )                    DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellee,                              )
                                                         )       ON APPEAL FROM THE
 v.                                                      )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE EASTERN
 EUGENE FISHER,                                          )       DISTRICT OF MICHIGAN
                                                         )
        Defendant-Appellant.                             )


BEFORE: BATCHELDER, GIBBONS, and SUTTON, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. In January 2018, a federal grand jury returned
a thirty-five-count indictment against Eugene Fisher and twenty other defendants. Fisher was
charged with various offenses related to his alleged criminal activities in aid of racketeering with
the Seven Mile Bloods (“SMB”), a Detroit gang, as well as two counts of being a felon in
possession of a firearm. After a jury trial, the jury only convicted Fisher of the two felon-in-
possession counts. The district court sentenced Fisher to ninety months’ imprisonment.

       Fisher raises several issues on appeal. First, Fisher argues that the district court erred in
denying him a Franks hearing. Second, he claims the Supreme Court’s decision in Rehaif v. United
States, 139 S. Ct. 2191 (2019), holding that the government must prove a defendant had knowledge
of his status as a felon under 18 U.S.C. § 922(g), requires this panel to vacate his conviction.
Similarly, Fisher argues that one of his § 922(g) convictions is not supported by substantial
evidence. Finally, Fisher claims that the district court erred in imposing sentencing enhancements
for obstruction of justice and possession of three or more firearms.

       We conclude that none of Fisher’s arguments have merit and affirm the judgment and
sentence.
Case No. 19-1220, United States v. Fisher


                                                I.

       A grand jury indicted Fisher on one count of RICO conspiracy in violation of 18 U.S.C.
§ 1962(d); one count of attempted murder in aid of racketeering in violation of 18 U.S.C. § 1959;
one count of assault in aid of racketeering in violation of 18 U.S.C. § 1959; two counts of using a
firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c); and two counts of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). A jury found Fisher
not guilty of the RICO conspiracy, attempted murder in aid of racketeering, assault in aid of
racketeering, and both counts of using a firearm in furtherance of a crime of violence. The jury
found Fisher guilty of the two counts of being a felon in possession of a firearm and ammunition.

                                                A.

       This case arises from a joint federal and state investigation into gang-related violence in
Detroit, Michigan. The Seven Mile Bloods (“SMBs”) are a gang that controls “the Red Zone,” a
specific geographical area in Detroit from Seven Mile to Eight Mile and from Kelly Road to Gratiot
Avenue.

       Fisher, also referred to as “Fes,” was not a member of the SMB, but was part of a precursor
gang to the SMB known as the “Ruthless Clan” or “R.C.” As a Ruthless Clan member, Fisher was
associated with the SMBs but was not a member of the SMB. As an associate, Fisher stored
firearms for SMB members in his residence along with his own firearms.

       On September 25, 2015, the SMB planned a “Block Party” at the Crazy Horse strip club.
The Federal Bureau of Investigation (“FBI”), Michigan State Police, and Detroit Police
Department found out about the party from SMB members’ social media accounts and coordinated
efforts to stop identified SMB members after they exited the party. Two SMB members, Steve
Arthur and Billy Arnold, exited the party and left in a Chevy Trailblazer. After a high-speed chase
with officers, Arthur and Arnold were arrested and charged in federal court. Upon searching the
vehicle, the officers recovered an AR-15 .223 Bushmaster rifle (“Bushmaster”) and several cell
phones.

       On September 27, 2015, two days after the arrests of Arthur and Arnold, Fisher posted on
Facebook “I almost lost two year’s out my life there [sic] weekend! God is, emojis, FREE MY
SQUAD!” DE 1154, Trial Tr., PageID 14495. On October 1, 2015, Arnold made a call from jail
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Case No. 19-1220, United States v. Fisher


to a phone number associated with Fisher. The unidentified male on that call asked: “Is that n***a
talking about anything about that night?” Id. Arnold responded, “[s]hit, yeah. Hell yeah.” Id.
The unidentified male responded, “[h]e ain’t say anything about where y’all went before y’all got
to the club did he?” Id. Arnold responded: “No.” Id.
       On October 2, 2015, Fisher sent a Facebook message to “Love Honey” stating, “[t]he Feds
just took my ar that my bro holding.” Id. at 14,497. Included with the message were two
photographs. One photograph was of a person who looks like Fisher at a table holding what
appears to be a firearm and another person holding what appears to be an AR-15 rifle. The second
photograph shows a person who looks like Fisher separately holding what looks to be the same
firearm pointed at the camera.

       At a September 29, 2015, detention hearing, Arthur “adamantly denied that he was the
driver of the Chevy Trailblazer.” DE 883-2, Detention Hr’g, PageID 5,963. However, at a
continuation of the detention hearing on October 1, 2015, the government offered evidence that
Arthur was the driver of the vehicle, and Arthur admitted he was the driver. Given Arthur’s
deception, the district court found that Arthur’s “veracity, integrity, intelligence, and
trustworthiness became pivotal issues” and denied Arthur bond. Id. at 5,964.

       On November 3, 2015, Magistrate Judge Stafford approved a search warrant for Fisher’s
residence, 18803 Lamont, based on FBI Agent Vicente Ruiz’s attached affidavit. The search
warrant authorized a search of the residence for firearms and ammunition; other items associated
with firearms or ammunition such as magazines, casings, documentation of ownership, and safes;
electronic devices; and information establishing ownership, possession, or control of the premises.

       In support of the search warrant, Ruiz provided a thirteen-page affidavit detailing his
background experience with the FBI, investigation of the SMB gang, and related SMB criminal
activity. Ruiz stated that a confidential informant, later identified as Arthur, “picked up the
Bushmaster . . . from [Eugene Fisher’s] house, located at 18803 Lamont . . . , prior to arriving at
the Crazy Horse.” DE 883-1, Search Warrant Aff., PageID 5958. The confidential informant
further relayed that he “had seen two other pistols with extended magazines at this location” and
“that it is common practice within the SMB to have firearms available to multiple members at a
stash house.” Id. Ruiz further included that the confidential informant “has provided information
about a previous shooting involving the SMB that has proved to be reliable.” Id. To corroborate

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Case No. 19-1220, United States v. Fisher


the confidential informant’s information, Ruiz confirmed that Fisher lived at 18803 Lamont by
referencing a prior police department report where Fisher reported that his electrical meter was
stolen. That report provided Fisher’s address and a phone number.

        Further, after searching Arnold’s cell phone pursuant to a search warrant after his arrest,
Ruiz corroborated the information about picking up the AR-15 rifle from Fisher’s residence with
text messages between Arnold and Fisher. Prior to arriving at the party, Arnold texted Fisher
stating, “I’m coming to grab something be close.” DE 1154, Trial Tr., PageID 14,487. Fisher
texted back, “[a]t crazyhorse.” Id. Arnold responded, “I need to get in yo crib and grab my hook
ups.” Id. Ruiz’s affidavit stated that this conversation related to “[Arnold] picking up the
Bushmaster .223 caliber rifle from [Fisher’s] house.” DE 883-1, Search Warrant Aff., PageID
5959. Surveillance of the residence showed a vehicle registered to Fisher parked in the driveway
of the residence. The affidavit also relied on the call Arnold made from jail to the phone number
associated with Fisher. Based on the confidential informant information and the independent
corroboration, Ruiz “believe[d] there [wa]s probable cause to believe that [Fisher] is an associate
of a racketeering enterprise that utilizes the target address in order to facilitate the criminal acts of
that enterprise, and that evidence of the enterprise’s crimes will be found in the target address.”
Id. at 5960.

        The search warrant for 18803 Lamont was executed on November 12, 2015. The police
seized a .45 caliber Ruger semi-automatic handgun (“Ruger handgun”), various sizes of
ammunition, various types of firearm magazines, electronic devices, a receipt, and gaming
magazines with Fisher’s address.

        A grand jury indicted Fisher on one count of RICO conspiracy in violation of 18 U.S.C.
§ 1962(d); one count of attempted murder in aid of racketeering in violation of 18 U.S.C. § 1959;
one count of assault in aid of racketeering in violation of 18 U.S.C. § 1959; two counts of using a
firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c); and two counts of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The first 922(g)
violation, Count 33, related to Fisher’s constructive possession of the Bushmaster rifle. The
second 922(g) violation, Count 34, related to Fisher’s possession of the Ruger handgun found in
his residence.


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Case No. 19-1220, United States v. Fisher


                                                B.

       Fisher filed his first motion to suppress the evidence obtained from the search of 18803
Lamont on December 18, 2016. This motion was held in abeyance. Fisher renewed his motion to
suppress and requested a Franks hearing on February 14, 2018. In support of a Franks hearing,
Fisher pointed to nine allegedly false statements or omissions in Ruiz’s affidavit supporting the
search warrant without which, Fisher alleged, there was no probable cause for the search.
Specifically, Fisher alleged that Ruiz omitted that Arthur, the confidential informant, was involved
in a high-speed chase with police and provided false information upon arrest regarding his
knowledge of the Bushmaster found in the vehicle; Arthur misled the judge at his detention hearing
regarding whether he was the driver of the vehicle; Arthur had a criminal history; Ruiz did not
have a relationship with Arthur or track record of providing reliable tips; and Arthur’s later grand
jury testimony contradicted information in the affidavit. Fisher further alleged that Ruiz’s
statement that Arthur’s information about a previous shooting “proved to be reliable” was
intentionally false or made with reckless disregard to the truth. DE 883, Renewed Mot. to
Suppress, PageID 5938.

       Assessing Fisher’s Franks motion, the district court rejected the “four misrepresentations
or material omissions” Fisher pointed to in Ruiz’s affidavit. DE 987, Order & Op., PageID 9017.
First, the district court found true Ruiz’s statement that the confidential informant had “provided
information about a previous shooting involving SMB that has proved to be reliable.” Id. at 9019;
see also id. at 9018–20. “Ruiz verified that [Arthur’s] information given in the proffer about [the]
previous murder was true.” Id. at 9018. “Ruiz clearly found this information to be credible and
reliable as the shooting became the initial [VICAR] charge indicted in this investigation.” Id.
Second, regarding omission of Arthur’s criminal history, the district court found that the criminal
connection was “evident on the face of the affidavit” because Arthur “could only provide
[information about the stash house] if he was close to the criminal activity,” and Ruiz was not
reckless. Id. at 9020. Third, because Arthur’s detention hearing, where the magistrate judge found
Arthur to have blatantly lied about driving the Chevy Trailblazer, “occurred two weeks before his
proffer session where he gave” the information to Ruiz, the omission of the false story to the
magistrate judge did “not rise to the level of bad faith requiring a Franks hearing.” Id. at 9021.



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Case No. 19-1220, United States v. Fisher


Finally, because Arthur gave his grand jury testimony after Ruiz submitted the warrant application,
the district court held that Ruiz could not have acted with reckless disregard for the truth.

                                                 C.

       Trial began June 5, 2018, and the jury returned its verdict on August 27, 2018. Fisher
stipulated that “prior to September 26, 2015, [he] had been convicted of at least one felony. He
knew that he was convicted of one felony, and he had not had his conviction expunged nor his
right to possess a firearm restored.” DE 1156, Trial Tr., PageID 14,701. Given this stipulation,
when instructing the jury on the § 922(g) offense, for the first element requiring that “[t]he
defendant has been convicted of a crime punishable by imprisonment for more than one year,” the
district court stated that “[t]he government and the defendant have agreed that defendant has
previously been convicted of a crime punishable by imprisonment for more than one year.” DE
1159, Jury Instrs., PageID 15,123, 15,125. The jury found Fisher guilty of both § 922(g) counts
and not guilty on the remaining counts.

                                                 D.

       Fisher moved for acquittal or a new trial, contending that the evidence was insufficient to
sustain Count 33, the § 922(g) conviction relating to the Bushmaster rifle. He argued that the
government failed to provide evidence sufficient to establish a nexus between him and the
Bushmaster rifle to satisfy the government’s burden to prove Fisher knowingly possessed the
Bushmaster rifle. Rejecting this argument, the district court denied the motion after finding that
“there [wa]s substantial evidence from which a rational trier of fact could find that Fisher possessed
the Bushmaster AR.” DE 1266, Order Den. Mot. for J. of Acquittal, PageID 16,257.

                                                 E.

       At the sentencing hearing, the district court heard argument on Fisher’s objections to the
Presentence Report (“PSR”). Specifically, Fisher objected to factual descriptions of Fisher as a
gang member and his affiliation with SMB, the enhancements for obstruction of justice and
possession of three or more firearms, and argued that the deduction for acceptance of responsibility
should apply. No additional evidence was presented at the sentencing hearing.




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Case No. 19-1220, United States v. Fisher


       The district court “adopt[ed] both the factual findings as well as the scoring of the offense
score in this case as submitted by probation,” and rejected Fisher’s arguments that the
enhancements did not apply. DE 1417, Sentencing Tr., PageID 18,713. The district court thought
the government’s arguments were
       consistent with the evidence submitted at trial, and that the . . . scoring of the . . .
       specific offense variable that includes the obstruction of justice [was] probably the
       closest of the three variables at issue here, but nevertheless, the relevant conduct
       included as argued by the government, [the district court] th[ought] demonstrated
       a lack of acceptance of responsibility . . . .

Id. Therefore, the district court found that with a base level of 20 and an increase of 6 levels for
the enhancements, Fisher’s adjusted offense level was 26, and he had a criminal history category
of III. The court calculated the Guidelines range as 78 to 97 months. After assessing the § 3553(a)
factors, the district court imposed a sentence of 90 months’ imprisonment. Fisher timely appealed.

                                                 II.

                                                 A.

       Fisher first argues that the district court erred in denying his motion for a Franks hearing.
Without Ruiz’s omission of information about Arthur’s veracity and lack of reliability as a
confidential informant, he argues, the affidavit “would not have allowed any neutral and detached
magistrate to find a connection between criminal conduct and Fisher’s residence.” CA6 R. 28,
Appellant Br., at 30.

       “[A] presumption of validity [exists] with respect to the affidavit supporting the search
warrant.” Franks v. Delaware, 438 U.S. 154, 171 (1978). “In a Franks hearing, a court determines
whether to suppress the fruits of an executed search warrant, where the warrant was the result of a
false statement.” United States v. Crawford, 943 F.3d 297, 309 (6th Cir. 2019) (citing Franks,
438 U.S. at 171).

       We review a “district court’s denial of a Franks hearing under the same standard as for the
denial of a motion to suppress: the district court’s factual findings are reviewed for clear error and
its conclusions of law are reviewed de novo.” United States v. Bateman, 945 F.3d 997, 1007–08
(6th Cir. 2019) (quoting United States v. Graham, 275 F.3d 490, 505 (6th Cir. 2001)). “Whether
to hold an evidentiary hearing based upon a challenge to the validity of a search warrant’s affidavit,

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Case No. 19-1220, United States v. Fisher


given alleged misstatements and omissions, is committed to the sound discretion of the district
court.” United States v. Young, 847 F.3d 328, 348 (6th Cir. 2017).

        “A defendant is entitled to a Franks hearing if he: 1) makes a substantial preliminary
showing that the affiant knowingly and intentionally, or with reckless disregard for the truth,
included a false statement or material omission in the affidavit; and 2) proves that the false
statement or material omission is necessary to the probable cause finding in the affidavit.” Id. at
348–49 (quoting United States v. Pirosko, 787 F.3d 358, 369 (6th Cir. 2015)).

        “Franks is generally inapplicable to [] omissions.” United States v. Alford, 717 F. App’x
567, 570 (6th Cir. 2017). “When there is a material omission of fact, a Franks hearing is granted
only if the defendant ‘makes a strong preliminary showing that the affiant with an intention to
mislead excluded critical information from the affidavit, and the omission is critical to the finding
of probable cause[.]’” United States v. Hampton, 760 F. App’x 399, 404 (6th Cir. 2019) (quoting
Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998)). “Only after the defendant makes this
showing may the court consider the veracity of the statements in the affidavit or the potential effect
of any omitted information.” United States v. Archibald, 685 F.3d 553, 558–59 (6th Cir. 2012).
“[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side,
there remains sufficient content in the warrant affidavit to support a finding of probable cause, no
hearing is required.” Franks, 438 U.S. at 171–72.

        Fisher points to two alleged omissions from Ruiz’s affidavit: (1) the fact that Arthur lied
to the court at his initial detention hearing; and (2) Arthur’s criminal history and lack of
relationship with Arthur as a confidential informant. But the district court did not err in denying
Fisher a Franks hearing because he failed to make a sufficient showing that Ruiz intended to
mislead the magistrate judge by omitting relevant information from the affidavit.

        First, regarding the detention hearing, Fisher only alleged that Ruiz knew that Arthur “had
his detention hearing” at the time he swore out the affidavit—Fisher did not allege that Ruiz knew
of Arthur’s deception or the court’s rebuke of Arthur. In order to show Ruiz intentionally omitted
the information or did so with a reckless disregard for the truth, Fisher needed to provide evidence
showing that Ruiz knew of Arthur’s dishonesty at his detention hearing prior to swearing out the




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Case No. 19-1220, United States v. Fisher


affidavit. See Alford, 717 F. App’x at 570–71 (noting that the defendant presented no evidence
that the officer knew information relating to the alleged omission).

        Similarly, Ruiz’s omissions of Arthur’s criminal history and lack of a prior relationship as
a confidential informant—upon which Fisher bases his argument that “the affidavit failed to
provide information which showed that the informant[’]s[] credibility could be questioned,”
United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997)—are also insufficient to warrant a
Franks hearing because there is no evidence Ruiz omitted this information with an intent to
mislead.   Moreover, Ruiz’s affidavit provided sufficient context regarding the confidential
informant such that adding the omitted information about Arthur’s criminal history and lack of
prior relationship would not defeat the showing of probable cause. See Atkin, 107 F.3d at 1217.
As a noted SMB member, the confidential informant “could only provide this type of information
if he was close to the criminal activity,” and “that connection is evident on the face of the affidavit.”
DE 987, Order & Op., PageID 9020. This court has found similar omissions of a confidential
informant’s criminal history, compensation for work, and lack of a relationship insufficient to
warrant a Franks hearing when other contextual factors are present. See United States v. Franklin,
622 F. App’x 501, 511–12 (6th Cir. 2015); United States v. Jones, 533 F. App’x 562, 568–69 (6th
Cir. 2013); United States v. Fowler, 535 F.3d 408, 416 (6th Cir. 2008).

        The district court did not err in denying a Franks hearing because Fisher did not make the
necessary showing of “an intent[] to mislead,” see Mays, 134 F.3d at 816, to support his motion
for a Franks hearing.

                                                   B.

        Fisher next argues that the panel must vacate his conviction in light of the Supreme Court’s
holding in Rehaif v. United States, 139 S. Ct. 2191 (2019). In Rehaif, the Supreme Court held that
18 U.S.C. § 922(g) “require[s] the Government to establish that the defendant knew he violated
the material elements,” including knowledge of his status as a felon. Id. at 2196–97. This is
because “the defendant’s status is the ‘crucial element’ separating innocent from wrongful
conduct.” Id. at 2197.

        The district court did not instruct the jury on the § 922(g) counts that it was required to
determine whether Fisher knew his status as a felon. Fisher did not object to the instruction on

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Case No. 19-1220, United States v. Fisher


this ground. Because Fisher failed to challenge the lack of a jury instruction regarding knowledge
of his felony status, this court reviews his claim for plain error. United States v. Mullet, 822 F.3d
842, 847–48 (6th Cir. 2016). “In reviewing for plain error, we must consider whether there
was plain error that affects substantial rights and that, in our discretionary view, seriously affects
the fundamental fairness, integrity, or public reputation of judicial proceedings.” United States v.
Barnett, 398 F.3d 516, 525 (6th Cir. 2005); see also United States v. Olano, 507 U.S. 725, 736–37
(1993) (providing that to show plain error, a defendant must show (1) an error (2) that was obvious
and (3) that affected the defendant’s substantial rights and (4) that seriously affected the fairness,
integrity, or public reputation of judicial proceedings).

       Although “[t]he absence of an instruction requiring the jury to find that [Fisher] knew he
was a felon was clear error under Rehaif,” United States v. Hollingshed, 940 F.3d 410, 415 (8th
Cir. 2019) (quoting United States v. Benamor, 937 F.3d 1182, 1188–89 (9th Cir. 2019)), Fisher
cannot show that this error affected his substantial rights because he stipulated to both his status
as a felon and his knowledge of that status. See also United States v. Williams, 946 F.3d 968, 971
(7th Cir. 2020). Fisher stipulated that “prior to September 26, 2015, [he] had been convicted of at
least one felony. He knew that he was convicted of one felony, and he had not had his conviction
expunged nor his right to possess a firearm restored.” DE 1156, Trial Tr., PageID 14,701.
“Although the stipulation of a prior felony does not automatically establish knowledge of felony
status, it is strongly suggestive of it.” United States v. Conley, 802 F. App’x 919, 923 (6th Cir.
2020). Moreover, the error did not taint the fairness or integrity of the proceedings because rational
jurors could have inferred knowledge of Fisher’s prohibited status from proof of the prohibited
status—here Fisher’s three prior felony convictions. See United States v. Raymore, ___ F.3d ___,
No. 19-3703, at 14 (6th Cir. July 13, 2020). Fisher cannot “‘show a reasonable probability that,
but for the error,’ the outcome of the proceeding would have been different.” Molina-Martinez v.
United States, 136 S. Ct. 1338, 1343 (2016) (quoting United States v. Dominguez Benitez, 542 U.S.
74, 82 (2004)). We conclude the error was harmless.




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Case No. 19-1220, United States v. Fisher


                                                  C.
       Fisher next challenges the sufficiency of the evidence of Count 33, arguing that the
government introduced “no proof that [he] ever actually or constructively possessed” the
Bushmaster rifle. CA6 R. 28, Appellant Br., at 17–18. We disagree.

       We review de novo the district court’s denial of a motion for acquittal based on insufficient
evidence, “viewing the evidence in ‘a light most favorable to the prosecution, giving the
prosecution the benefit of all reasonable inferences from the testimony.’” United States v.
Graham, 622 F.3d 445, 448 (6th Cir. 2010) (quoting United States v. McAuliffe, 490 F.3d 526, 537
(6th Cir. 2007)). “[T]he relevant question is 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.”           Jackson v. Virginia, 443 U.S. 307, 319 (1979).
“A defendant claiming ‘insufficiency of the evidence bears a very heavy burden.’” United States
v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006) (quoting United States v. Vannerson, 786 F.2d 221,
225 (6th Cir. 1986)). Fisher has not met this burden.

       “To obtain a conviction pursuant to § 922(g)(1), the government must prove beyond a
reasonable doubt: (1) that the defendant has a prior conviction for a crime punishable by
imprisonment for a term exceeding one year; (2) that the defendant thereafter knowingly possessed
the firearm and ammunition specified in the indictment; and (3) that the possession was in or
affecting interstate commerce.” United States v. Schreane, 331 F.3d 548, 560 (6th Cir. 2003)
(quoting United States v. Daniel, 134 F.3d 1259, 1263 (6th Cir. 1998)). Fisher only argues that
the government failed to prove the second element, that he knowingly possessed the Bushmaster
rifle. Fisher contends that because he was not a passenger in the Chevy Trailblazer with Arnold
and Arthur and no witness testified that he controlled the firearm on that date, the government
failed to prove Fisher possessed the firearm.

       “Under § 922(g), either actual or constructive possession is sufficient.” United States v.
Farrad, 895 F.3d 859, 871 (6th Cir. 2018) (quoting United States v. Harris, 293 F.3d 970, 975
(6th Cir. 2002)). “Actual possession requires that a defendant have immediate possession or
control of the firearm, whereas constructive possession exists when the defendant ‘does not have
possession but instead knowingly has the power and intention at a given time to exercise dominion
and control over an object, either directly or through others.’” United States v. Campbell, 549 F.3d

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Case No. 19-1220, United States v. Fisher


364, 374 (6th Cir. 2008) (quoting United States v. Grubbs, 506 F.3d 434, 439 (6th Cir. 2007));
Grubbs, 506 F.3d at 439 (stating that “constructive possession may be proven if the defendant
merely had ‘dominion over the premises where the firearm is located.’” (quoting United States v.
Gardner, 488 F.3d 700, 713 (6th Cir. 2007))).                Moreover, “[n]umerous cases hold
that . . . eyewitness testimony describing a firearm actually possessed by the defendant that
matches a firearm later recovered by the police . . . sufficiently connects the gun described to the
gun found.” United States v. Arnold, 486 F.3d 177, 182–83 (6th Cir. 2007) (collecting cases).

       Upon review, the record reflects that there was sufficient evidence to support the jury’s
verdict. Fisher was charged with having knowingly possessed the Bushmaster rifle “[o]n or about
September 26, 2015.” DE 812, Sixth Superseding Indictment, PageID 4631–32. Although Fisher
did not have actual possession of the Bushmaster at the time the government seized it from Arthur
and Arnold, there was sufficient evidence from which the jury could infer that Fisher knowingly
possessed the Bushmaster rifle at his residence earlier that evening. First, the jury could infer from
the text messages between Fisher and Arnold on September 25, 2015 that Arnold had gone to
Fisher’s residence to “grab [his] hook ups” prior to the party at Crazy Horse. DE 1154, Trial Tr.,
PageID 14487. When the police stopped Arthur and Arnold and recovered the Bushmaster from
the vehicle, the jury could infer that the Bushmaster was the weapon picked up from Fisher’s
residence earlier that evening. The short period between the text messages sent around 11 P.M.
and seizure of the Bushmaster at 2 A.M. permits this reasonable interference.

       Additionally, the following day, Fisher posted a Facebook message stating “I almost lost
two year’s out my life [this] weekend!” DE 1154, Trial Tr., PageID 14,495. And a week after the
seizure of the Bushmaster, on October 2, 2015, Fisher Facebook messaged “Love Honey”: “The
Feds just took my ar that my bro holding.” Id. at 14,497. Included with the Facebook message is
a photograph of a person that looks like Fisher holding an automatic rifle and a second person
holding what looks like an AR-15. Fisher also Facebook messaged Charles Lee that he was
“worried [Arthur] might tell on [him].” Id. at 14,500. Viewing all of the evidence in the light
most favorable to the government, a rational trier of fact could conclude that Fisher knowingly
possessed the Bushmaster rifle at his residence prior to Arnold picking it up before the party at
Crazy Horse.



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Case No. 19-1220, United States v. Fisher


                                                  D.

       Finally, Fisher argues that the district court erroneously imposed enhancements for
obstruction of justice, U.S.S.G. § 3C1.1, and possession of three or more firearms, U.S.S.G.
§ 2K2.1(b)(1)(A). In addition to arguing that the enhancements are unsupported by the record,
Fisher also contends that the district court failed to make factual findings supporting the
enhancement.

                                                  1.

       We initially address Fisher’s contention that his sentence is procedurally unreasonable
because the district court failed to make sufficient factual findings so as to permit appellate review
of the imposition of the sentencing enhancements.

       “When selecting an appropriate sentence, the district court ‘must adequately explain the
chosen sentence to allow for meaningful appellate review and to promote the perception of fair
sentencing.’” United States v. Fowler, 819 F.3d 298, 304 (6th Cir. 2016) (quoting United States
v. Recla, 560 F.3d 539, 547 (6th Cir. 2009). For a sentence to be procedurally reasonable, a district
court must make adequate factual findings as to the imposition of contested sentencing
enhancements. United States v. Davis, 924 F.3d 899, 904 (6th Cir. 2019). “[I]f the defendant
raises a dispute to the presentence report, the ‘court may not merely summarily adopt the factual
findings in the presentence report or simply declare that the facts are supported by a preponderance
of the evidence.’” United States v. Ross, 502 F.3d 521, 531 (6th Cir. 2007) (quoting United States
v. Solorio, 337 F.3d 580, 598 (6th Cir. 2003).

       Here, Fisher did not dispute the facts as detailed in the PSR. Instead he argued that the
conclusions and inferences to be drawn from those facts did not support the imposition of the two
sentencing enhancements. Without a dispute as to the facts in the PSR or any additional evidence
produced at the sentencing hearing contradicting these facts, the district court was able to
summarily adopt the factual findings in the PSR. Additionally, after hearing argument by both
parties, the district court clearly concluded that it found that the evidence submitted at trial and in
the PSR justified the imposition of the sentencing enhancements.




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Case No. 19-1220, United States v. Fisher


                                                  2.

       Fisher next argues that the district court erred in imposing a sentence enhancement for
obstructing justice. See U.S.S.G. § 3C1.1.

       This court has noted that our precedent discussing the relevant standard of review of a
district court’s decision to impose the obstruction of justice enhancement has been unclear. United
States v. Thomas, 933 F.3d 605, 608–10 (6th Cir. 2019) (collecting cases). Our cases appear to
agree that we review factual determinations underlying the imposition of the enhancement for clear
error and legal interpretations de novo. Id. at 608. No such agreement exists as to how we review
the application of law to those facts. Id. We need not settle the matter because the district court’s
decision to impose the enhancement survives even de novo review.

       The Sentencing Guidelines instruct district courts to impose a two-level increase to the
defendant’s offense level whenever a defendant (1) “willfully obstructed or impeded, or attempted
to obstruct or impede, . . . the investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction
and any relevant conduct; or (B) a closely related offense.” U.S.S.G. § 3C1.1. The Guidelines’
application notes provide that the enhancement may apply to conduct occurring prior to the start
of an investigation, “if the conduct was purposefully calculated, and likely, to thwart the
investigation or prosecution of the offense of conviction.” Id. § 3C1.1 cmt. n.1. The Guidelines’
notes also provide a non-exhaustive list of examples of the conduct to which the enhancement was
intended to apply and not apply. Id. § 3C1.1 cmt. n.3. “[T]hreatening, intimidating, or otherwise
unlawfully influencing a co-defendant . . . [or] witness, . . . directly or indirectly, or attempting to
do so,” are examples of conduct to which the enhancement should apply. Id. § 3C1.1 cmt. n.4.

       This court has held that “intentional attempt[s] at intimidation” are sufficient to support the
enhancement. United States v. Robinson, 813 F.3d 251, 263 (6th Cir. 2016); United States v.
Bright, 789 F. App’x 947, 952 (6th Cir. 2019). “A defendant has obstructed justice when his
behavior ‘can be reasonably construed as a threat.’” Robinson, 813 F.3d at 263 (quoting United
States v. Kamper, 748 F.3d 728, 744 (6th Cir. 2014)). “Threats alone are enough to justify the
enhancement.” United States v. Parsons, 798 F. App’x 922, 927 (6th Cir. 2020) (citing United
States v. Brown, 237 F.3d 625, 627–28 (6th Cir. 2001)).


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Case No. 19-1220, United States v. Fisher


          In Parsons, this court upheld the imposition of the enhancement when Parsons “attempt[ed]
to induce others into threatening or even killing law enforcement officials involved in his
prosecution.” Id. at 928. The threats do not have to have an “actual effect,” rather the enhancement
covers attempted and successful obstruction. Id. The enhancement also applies to a defendant’s
“‘attempt to indirectly threaten a witness’ through a third party, even where the witness may never
learn of the threat.” Id. (quoting United States v. Talley, 443 F. App’x 968, 972–73 (6th Cir.
2011)).

          Fisher asserts that application of the enhancement was improper because his post “snitches
get stiches” was too broad to be considered a threat against any individual and the assault on the
state witness at SMB-member McClure’s trial occurred in January 2015 and his conduct occurred
between September and November 2015, so the assault could not have related to Fisher’s offenses
of conviction. At the sentencing hearing, however, the government explained that Fisher’s January
2015 conduct fell within the period where Fisher knew about the ongoing federal investigation as
the investigation of the SMB began in 2014. Additionally, contrary to Fisher’s contention that his
threats were only general and not directed at any one person, Fisher was in a physical altercation
with a state witness during the trial. Moreover, the day after Fisher was involved in this
confrontation, he posted on Facebook “snitches get stiches.” DE 1417, Sentencing Tr., PageID
18,696; DE 1585, Exhibits, PageID 22,180. The next day Fisher clarified further and posted on
Facebook that McClure “beat his case [to]day! I hit the snitching ass lil n***a in his mouth and
almost went [to] jail at Frank Murphy. The lil n***a was still trying [to] snitch after I hit him in
his shit, some n***as never learn!” DE 1585, Exhibits, PageID 22,179; DE 1417, Sentencing Tr.,
PageID 18,696. Fisher’s direct and indirect threats and intimidation directly fall within the scope
of the obstruction of justice enhancement. The district court did not err in imposing this
enhancement.

                                                  3.

          Fisher also argues that the district court erred in imposing a sentence enhancement for
possession of three or more firearms during the commission of an offense.             See U.S.S.G.
§ 2K2.1(b)(1)(A).




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Case No. 19-1220, United States v. Fisher


        Under section 2K2.1(b)(1)(A), a court will increase a defendant’s offense level if the
offense involved three to seven firearms. The government argued and the district court concluded
that Fisher’s possession of the AK-47 was relevant conduct that coincided with Fisher’s possession
of the Bushmaster.

        We accept a district court’s factual findings made at sentencing unless they are clearly
erroneous. United States v. Phillips, 516 F.3d 479, 483 (6th Cir. 2008). “Because a district court’s
relevant-conduct determination [under U.S.S.G. § 2K2.1(b)(1)(A)] involves the application of law
to facts, we review de novo.” United States v. Amerson, 886 F.3d 568, 573 (6th Cir.2018) (citing
Phillips, 516 F.3d at 483). The government bears the burden of proof, by a preponderance of the
evidence, that Fisher’s possession of the AK-47 was relevant conduct. Phillips, 516 F.3d at 483.

        To calculate the number of firearms involved in the offense under section 2K2.1(b)(1), the
Guidelines’ note instructs courts to “count only those firearms that were unlawfully sought to be
obtained, unlawfully possessed, or unlawfully distributed.” U.S.S.G. § 2K2.1 cmt. n.5. To
determine if an “offense” involved multiple firearms, courts assess “relevant conduct”: “the court
looks to whether the activity was ‘part of the same course of conduct or common scheme or plan
as the offense of conviction.’” United States v. Bowens, 938 F.3d 790, 798 (6th Cir. 2019) (quoting
U.S.S.G. § 1B1.3(a)(2)). Offenses are part of the “same course of conduct” if the offenses are
“sufficiently connected or related to each other as to warrant the conclusion that they are part of a
single episode, spree, or ongoing series of offenses.” U.S.S.G. § 1B1.3 cmt. n.5(B)(ii).         The
Guidelines focus on three factors: regularity, similarity, and timing. Id. The factors are assessed
on a sliding scale: “[w]hen one of the above factors is absent, a stronger presence of at least one
of the other factors is required.” Id.; see also Bowens, 938 F.3d at 800; United States v. Hill,
79 F.3d 1477, 1482 (6th Cir. 1996).

        First, as to regularity, the government offered Fisher’s Facebook posts, photographs, and
videos from Fisher’s iPad showing that Fisher possessed the AK-47 rifle from January to October
2015.   Officers executing the search warrant at Fisher’s residence also seized ammunition
commonly used in AK-47 rifles, as well as various other firearms. Additionally, the government’s
evidence at trial demonstrated that SMB members regularly congregated at Fisher’s residence and
used it as a place to store firearms. The government provided sufficient evidence that Fisher
regularly possessed the firearms.

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Case No. 19-1220, United States v. Fisher


       Second, the degree of similarity is strong. “The relevant conduct—illegally possessing
firearms as a felon—is identical to the offense of conviction.”         Phillips, 516 F.3d at 485.
Moreover, the AK-47 was possessed at the same location—Fisher’s residence—as the Bushmaster
rifle and the Ruger handgun. See United States v. Henry, 819 F.3d 856, 865 (6th Cir. 2016) (noting
similarity when the firearm sales occurred at the same location).

       Third, regarding timing, the Facebook photographs, posts, and iPad videos show that Fisher
concurrently possessed both the Bushmaster and AK-47 for most of 2015. We have favorably
cited out-of-circuit cases that conclude “contemporaneous, or nearly contemporaneous, possession
of uncharged firearms is . . . relevant conduct in the context of a felon-in-possession prosecution.”
Phillips, 516 F.3d at 483 (quoting United States v. Powell, 50 F.3d 94, 104 (1st Cir. 1995)). Our
cases have “generally upheld the relevant conduct designation where the offenses were within a
nine-month period.” Id. at 483–84 (surveying cases); see also Amerson, 886 F.3d at 574; United
States v. Conway, 513 F.3d 640, 642–43 (6th Cir. 2008). Given the simultaneous possession of
the firearms, the timing factor also strongly favors including the AK-47 possession as relevant
conduct.

       Fisher’s reliance on Amerson is misplaced. In Amerson, the court found that, although the
timing factor was strong, there was a complete absence of the regularity factor and weak evidence
of the similarity factor. 886 F.3d at 574–77. Here, in contrast, there is strong evidence on each of
the course-of-conduct factors.

       The district court did not err in holding that possession of the AK-47 was part of the same
course of conduct as Fisher’s possession of the Bushmaster rifle and Ruger handgun.

                                                III.

       For the reasons stated we affirm Fisher’s conviction and sentence.




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