Clear-Error Review Governs Threat-Based Obstruction Enhancements Under § 3C1.1; Corroborated, Present-Tense CI Tips Sustain Home Search Warrants

Introduction

In United States v. Jarrett Howard (6th Cir. Oct. 28, 2025) (not recommended for publication), the Sixth Circuit affirmed both the denial of a suppression motion and the imposition of a two-level obstruction-of-justice enhancement at sentencing. The case centers on two pivotal issues:

Whether a search warrant for Howard’s apartment was supported by probable cause based on a confidential informant’s detailed tip corroborated by police surveillance and other investigative steps.
Whether the district court properly applied U.S.S.G. § 3C1.1 for obstruction of justice after Howard told a potential witness, “Don’t double-cross me,” days before trial, and what standard of review governs such threat-based obstruction findings on appeal.

The panel (Judges Readler, Murphy, and Bloomekatz; opinion by Judge Murphy) held that the informant’s reliability, level of detail, and the officers’ corroboration created a fair probability that contraband would be found in Howard’s residence. On sentencing, the court adopted a deferential clear-error standard for reviewing a district court’s § 3C1.1 obstruction finding premised on witness threats—extending the Sixth Circuit’s recent clear-error holding in perjury-based obstruction (United States v. Jackson, 6th Cir. Oct. 1, 2025) to threat-based obstruction. The decision provides concrete guidance on informant-driven probable cause and clarifies appellate deference for threat-based obstruction enhancements.

Summary of the Opinion

The Sixth Circuit affirmed Howard’s convictions and 300-month sentence. It concluded:

Probable Cause: Under the totality of the circumstances, the confidential informant’s past reliability, specific details (including the precise location of drugs in an upstairs bedroom closet and the exact times of Howard’s work breaks), and substantial police corroboration (residence, vehicle, employment, visits to known drug houses, marijuana possession confirmed by a K-9 alert during a traffic stop, and a pattern of activity consistent with trafficking) established a fair probability of evidence at the apartment. The staleness challenge failed because the informant used present tense (ongoing conduct) and officers corroborated recent drug-related activity.
Obstruction of Justice: The district court did not clearly err in finding that Howard’s “Don’t double-cross me” statements to a potential witness (Jennifer Mullins) days before trial constituted a threat or intimidation for purposes of § 3C1.1. The panel held that clear-error review applies to obstruction findings based on threats, aligning the standard with perjury-based obstruction after Jackson (2025). The court rejected defenses based on lack of explicit witness designation, alleged ambiguity of the statements, and reliance on Elonis’s intent standard (which interprets a separate federal threat statute).

Detailed Analysis

I. Probable Cause: Corroborated Informant Tips, Present-Tense Assertions, and “Commonsense” Review

The court’s Fourth Amendment analysis follows the well-established framework of Illinois v. Gates, emphasizing a totality-of-the-circumstances approach that evaluates an informant’s reliability and basis of knowledge, tempered by practical, commonsense judgment and deference to the issuing magistrate. The panel’s approach is framed by the Sixth Circuit’s recent en banc reaffirmation in United States v. Sanders (2024) that “many roads” lead to probable cause and that reviewing courts should resist hypertechnical parsing of affidavits.

Key features of the affidavit that, together, satisfied probable cause:

Informant reliability: The CI was known to police, had provided accurate and reliable information before, and had conducted numerous controlled buys—hallmarks of reliability recognized by Sixth Circuit precedent.
Detailed basis of knowledge: The CI provided granular, insider details: Howard allegedly kept drugs in an upstairs bedroom closet; he took 6 p.m., 8 p.m., and 10 p.m. breaks for drug sales; he worked at Bluegrass Plating; he used a gray SUV; he partnered with Kyonna Mundy; and he smoked marijuana. Such specificity exceeds conclusory accusations and indicates first-hand familiarity.
Independent corroboration: Officers verified Howard’s residence (unit 6), criminal history (including a prior controlled-substance trafficking felony), vehicle (gray Honda SUV), job (Bluegrass Plating), movements matching the break-time pattern, association with Mundy, and recent drug-adjacent behavior (brief stays at known drug houses with high-traffic indicative of trafficking). A K-9 alert during a traffic stop yielded marijuana, and Howard had cash. Officers observed him return to his apartment thereafter.
Ongoing conduct: The affidavit’s present-tense phrasing (“is responsible,” “keeps”) and contemporaneous surveillance demonstrated an ongoing trafficking operation, not a stale, one-off incident.

The court rejected Howard’s staleness argument, explaining that present-tense, continuing conduct—corroborated by fresh police observations—defeats staleness concerns. Reading the affidavit “commonsensically,” not hypertechnically, the court found a fair probability contraband would be found where the CI said it would be found—which, indeed, is what officers discovered: large quantities of cocaine and fentanyl, two handguns, a digital scale, and $34,450 in the master bedroom.

II. Obstruction of Justice Under § 3C1.1: Threats, Ambiguity, and the Standard of Review

On sentencing, the dispute centered on whether Howard’s repeated admonition to Mullins—“Don’t double-cross me”—amounted to a threat or intimidation of a potential witness. The district court had already revoked Howard’s bond for the same conduct, finding his in-person visit days before trial, in violation of release conditions, and his coded language reflected an intent to intimidate. At sentencing, the court incorporated those factual findings and applied the § 3C1.1 enhancement.

The panel’s most notable contribution is doctrinal: it holds that the clear-error standard governs appellate review of threat-based § 3C1.1 enhancements, harmonizing the standard with the circuit’s recent decision in Jackson (2025) for perjury-based § 3C1.1 enhancements. Because both perjury and threats turn on historical fact-finding (did the defendant commit perjury; did the defendant threaten or intimidate), the same deferential review applies. Under clear error, the appellate court asks only whether the district court’s finding is “plausible” in light of the record.

Applying that standard, the panel deemed it plausible—and therefore not clearly erroneous—that Howard’s conduct was threatening/intimidating. Mullins reported feeling threatened; the visit was unannounced, in-person, and in violation of release conditions; it occurred four days before trial; and the phrase “Don’t double-cross me,” repeated multiple times, is reasonably construed as coded intimidation aimed at her participation in the case.

The court rejected several defense arguments:

No need for formal witness designation: The enhancement applies when the defendant targets someone he knows may be involved, even if the government has not formally identified the person as a witness.
Ambiguity does not insulate coded threats: Ambiguous statements can still qualify if they are reasonably construed as threats or intimidation, especially in context.
Elonis does not control § 3C1.1: Elonis interpreted a separate federal statute’s mens rea. By contrast, § 3C1.1 expressly covers threats, attempts to intimidate, or influence witnesses, and the district court in any event found intent to intimidate—a finding upheld as plausible.
Reliance on bond-revocation findings is proper: The sentencing court could rely on the same factual findings it made at bond revocation; those findings directly supported the obstruction enhancement.

III. Precedents Cited and Their Influence

Illinois v. Gates, 462 U.S. 213 (1983): Established the totality-of-the-circumstances approach to probable cause and endorsed a flexible, commonsense lens, including consideration of informant reliability and basis of knowledge. The panel faithfully applies Gates, emphasizing deference and practical corroboration.
United States v. Sanders, 106 F.4th 455 (6th Cir. 2024) (en banc): Reaffirmed Gates’s holistic approach and cautioned against hypertechnical readings; highlighted that many paths can establish probable cause. The panel relies on Sanders to validate the commonsense reading of the affidavit.
United States v. Smith, 182 F.3d 473 (6th Cir. 1999): Recognized that a CI’s prior reliability and police corroboration bolster informant tips. The panel invokes Smith to credit the CI’s track record and the officer’s corroboration.
United States v. Simmons, 129 F.4th 382 (6th Cir. 2025): Cited for the reliability/basis-of-knowledge inquiry for informant tips, aligning the panel’s analysis with current circuit doctrine.
United States v. Christian, 925 F.3d 305 (6th Cir. 2019) (en banc): Emphasized “great deference” to issuing judges and rejection of hypertechnical critiques of affidavits. The panel leans on this deference as it affirms the warrant.
Sgro v. United States, 287 U.S. 206 (1932); United States v. Frechette, 583 F.3d 374 (6th Cir. 2009): Address staleness; the panel distinguishes by pointing to ongoing, present-tense activity and fresh corroboration.
United States v. Church, 823 F.3d 351 (6th Cir. 2016); United States v. Greene, 250 F.3d 471 (6th Cir. 2001): Ongoing criminal activity mitigates staleness. The panel uses these to defeat the staleness claim.
United States v. Thomas, 933 F.3d 605 (6th Cir. 2019): Noted prior conflicting standards of review for obstruction; the panel situates its holding in the wake of that inconsistency.
United States v. Jackson, __ F.4th __, 2025 WL 2788124 (6th Cir. Oct. 1, 2025): Held clear-error review applies to perjury-based § 3C1.1; the panel extends this clear-error standard to threat-based obstruction.
United States v. O’Lear, 90 F.4th 519 (6th Cir. 2024): Describes “plausibility” threshold under clear-error review; supports affirmance where district court’s factual inference is reasonable.
United States v. Robinson, 813 F.3d 251 (6th Cir. 2016); United States v. French, 976 F.3d 744 (6th Cir. 2020): Recognize that threats or intimidation of witnesses are prototypical § 3C1.1 conduct; ambiguity does not preclude a finding of intimidation if reasonably construed as such.
United States v. Cannon, 552 F. App’x 512 (6th Cir. 2014): Confirms that subtle or coded threats can trigger § 3C1.1.
United States v. Huntley, 530 F. App’x 454 (6th Cir. 2013); United States v. Johns, 1998 WL 109986 (6th Cir. Mar. 4, 1998): Enhancement may apply even if government has not identified the target as a witness, where the defendant knows the person may be involved.
United States v. Archer, 671 F.3d 149 (2d Cir. 2011): Distinguished; mere name-calling did not amount to a coded threat. Here, “Don’t double-cross me,” in context, plausibly conveyed intimidation.
Elonis v. United States, 575 U.S. 723 (2015): Interpreted a federal threat statute’s mens rea; panel explains Elonis does not control § 3C1.1, which expressly encompasses intimidation and influencing witnesses. The district court, moreover, found intent to intimidate on this record.

IV. The Court’s Legal Reasoning

The opinion’s reasoning coheres around two themes: deference and context.

Deference to the issuing judge (probable cause): Anchored in Gates and Christian, the panel defers to the magistrate’s commonsense judgment and refuses hypertechnical critiques of the affidavit’s lack of explicit dates for the CI’s observations. The present-tense narration and corroborated ongoing conduct suffice.
Deference to the sentencing court (obstruction): Adopting clear-error review for threat-based obstruction (extending Jackson), the panel emphasizes that credibility determinations and contextual inferences—especially about coded language—are quintessentially factual, and will be sustained where plausible.
Contextual evaluation of speech and conduct: The phrase “Don’t double-cross me” does not exist in a vacuum. Its timing (four days pre-trial), manner (in-person, unannounced, violation of release), audience (a potential witness on the apartment lease), and repetition transform it into a reasonable shorthand for intimidation aimed at the criminal case.

Practical Implications and Impact

A. Search Warrants Based on Confidential Informants

Drafting affidavits: Officers should capture present-tense, ongoing conduct, include specific details about the location and manner of contraband storage, and document independent corroboration (residence, vehicles, employment, movement patterns, known drug locations, K-9 alerts, cash, co-participants). Such corroboration powerfully augments CI tips.
Litigating staleness: Defense arguments premised on missing dates will face headwinds where affidavits use present tense and are buttressed by recent surveillance indicating a continuing enterprise. Courts continue to read affidavits holistically and practically, not with “hypertechnical” exactitude.
Reliability and basis-of-knowledge: A robust showing on one can compensate for a weaker showing on the other under Gates. Here, both were strong: track-record reliability and granular inside information.

B. Obstruction Enhancements Under § 3C1.1

New clarification (though unpublished): clear-error review for threat-based obstruction: Following Jackson’s perjury holding, this panel applies the same deferential standard to threats. On appeal, the question is whether the district court’s view is plausible—not whether the appellate court would reach the same conclusion de novo.
Ambiguous “coded” statements can suffice: Statements like “Don’t double-cross me,” especially when paired with suspect timing and release violations, can constitute intimidation even if phrased indirectly.
No formal witness designation required: A defendant cannot evade § 3C1.1 by targeting individuals likely to be involved rather than officially designated witnesses.
Record-building at sentencing: District courts may rely on factual findings from related proceedings (e.g., bond revocation), but should make clear, on-the-record findings that the conduct was intended to intimidate or influence a potential witness.
Client counseling: Defense counsel should warn clients that any contact—especially in-person visits in violation of release conditions—with potential witnesses can readily be construed as intimidation and trigger § 3C1.1, significantly increasing guideline exposure.

Although the opinion is unpublished (and therefore non-precedential within the Sixth Circuit), its alignment with recent en banc and published circuit authority suggests it will be persuasive in future cases—particularly on the standard of review for threat-based § 3C1.1 findings and the treatment of CI-driven warrant affidavits post-Sanders.

Complex Concepts Simplified

Probable Cause: Not proof beyond a reasonable doubt. It asks whether there is a fair probability that evidence of a crime will be found in a particular place, judged by practical, commonsense standards and the totality of circumstances.
Totality of the Circumstances: Courts look at everything together—CI reliability, detail, corroboration—rather than any single factor in isolation.
Staleness: Information can go stale if too old. But where an affidavit shows ongoing criminal activity (often signaled by present-tense language and recent surveillance), staleness is less likely.
Clear-Error Review: A deferential appellate standard. The question is whether the district court’s factual finding was plausible given the record—not whether the appellate court would have decided differently.
§ 3C1.1 Obstruction: Adds two levels if the defendant willfully obstructed or attempted to obstruct the administration of justice in the case (e.g., threatening, intimidating, or influencing a witness). It covers coded or subtle intimidation, not just explicit threats.

Conclusion

United States v. Howard reinforces two recurrent themes in criminal procedure and sentencing. First, corroborated, detailed informant tips—especially those framed in present-tense and supported by contemporaneous surveillance—continue to provide reliable pathways to probable cause for home searches under Gates and Sanders. Staleness arguments must yield where the affidavit reflects an ongoing enterprise and recent corroboration.

Second, the decision clarifies that appellate courts apply clear-error review to § 3C1.1 obstruction enhancements based on witness threats, extending Jackson’s perjury-based standard to intimidation cases. Context matters: even ambiguous or “coded” statements, like “Don’t double-cross me,” can plausibly constitute intimidation when delivered face-to-face, in violation of release conditions, on the eve of trial, to a likely witness. Together, these holdings provide practical guidance for law enforcement, prosecutors, defense counsel, and district courts navigating informant-based warrants and the evidentiary predicates for obstruction enhancements.