United States v. Kyle S. Hinderer

2 Opinion of the Court 25-11477 § 875(c).¹Hinderer challenges the District Court's application of the enhancement provided under U.S.S.G. § 2A6.1(b)(1), which provides for a six-level enhancement "[i]f the offense involved any conduct evidencing an intent to carry out such threat." After care- ful review, we affirm Hinderer's sentence.

I.

Following his mother's death on December 30, 2023, Hin- derer threatened to kill three of his family members²and anyone else that attended his mother's funeral, which was scheduled to oc- cur in Connecticut on January 6, 2024. Between December 31, 2023, and January 3, 2024, Hinderer sent a series of texts to his brother³which included the following statements.

• "I will burn that whole goddamn place down and I will shoot everybody on the way out."

• "I'm killing [Victim l's] kids right in frontt [sic] of her."

• "[AK]47s and all the whole town is going up."

2

25-11477 Opinion of the Court 3 Hinderer also messaged a cousin⁴via social media just three days before the funeral, stating "[t]hey aren't gonna make it out," and confirming that he "[j]ust got a 200 box of ammo."

Hinderer's family reported his messages to the FBI, and Hin- derer was taken into custody by local law enforcement in Florida on January 3, 2024. Hinderer was subsequently indicted on five counts of communicating a threat to injure in violation of 18 U.S.C. § 875(c) and pleaded guilty to a single count of the indictment pur- suant to a written plea agreement.

Hinderer's Pre-Sentence Investigation Report ("PSR") out- lined the various threatening statements Hinderer made, and it ap- plied a six-level enhancement to his base offense level pursuant to U.S.S.G. § 2A6.1(b)(1) on the ground that the offense involved

"conduct evidencing an intent to carry out [the] threat." Hinderer filed an objection to the PSR, but did not dispute any of the facts contained in the PSR. Hinderer only argued that there was insuffi- cient evidence as a matter of law to support applying the § 2A6.1(b)(1) enhancement.

At the sentencing hearing, the Government called Special Agent Walter Castillo to testify. Agent Castillo testified that he ex- ecuted a search warrant on Hinderer's phone and discovered two additional pieces of evidence that were not included in the PSR.

3

4 Opinion of the Court 25-11477 First, Hinderer used his phone to search for train tickets from Flor- ida to Connecticut prior to his arrest and messaged at least one per- son confirming he obtained a ticket. Second, Hinderer texted sev- eral friends and family members that he did not intend to threaten, advising them of his plans and encouraging them to stay away from Hinderer's mother's funeral for their own safety.⁵ After hearing the evidence, the District Judge overruled Hin- derer's objection and made the following finding:

In terms of the conduct, he said he claimed to have bought ammunition. He researched the purchase of a ticket, an Amtrak ticket, to go to the funeral. I mean, it's significant. He warned people to stay away, which is not part of the threat. It's a warning to people ap- parently he didn't want to hurt, not to go to the fu- neral. The fact that he didn't get to the funeral was a result of his arrest. And so I find that this offense char- acteristic applies.

II.

Whether a defendant's conduct evidenced an intent to carry out a threat is a mixed question of law and fact. United States v. Scott, 441 F.3d 1322, 1328 (11th Cir. 2006). We review a district court's factual findings for clear error, but we review de novo a district court's legal determination that the facts evidence an intent

4

25-11477 Opinion of the Court 5 to carry out a threat within the meaning of U.S.S.G. § 2A6.1(b)(1). Id.

In reviewing the application of a sentence enhancement, we are mindful that "[g]uideline sentencing is an adversarial process."

United States v. Scroggins, 880 F.2d 1204, 1209 (11th Cir. 1989). When facts contained in the PSR are not disputed by either side, the PSR effectively functions as a "pretrial stipulation," and the facts contained in the PSR are taken as true for purposes of sentenc- ing. Id. at 1209 n. 11; United States v. Taylor, 88 F.3d 938, 943 (11th Cir. 1996) (noting "[t]he facts reported in Taylor's presentence in- vestigation report" were "adopted for purposes of sentencing").

III.

Section 2A6.1(b)(1) calls for a six-level enhancement "[i]f the offense involved any conduct evidencing an intent to carry out [the] threat." U.S.S.G. § 2A6.1(b)(1). In applying this enhancement, courts may consider conduct that occurred both before and after the threat was made. United States v. Barbour, 70 F.3d 580, 587 (11th Cir. 1995).

Here, there was sufficient evidence in the record for the Dis- trict Court to conclude that Hinderer's conduct evidenced an in- tent to carry out his threat to kill everyone at his mother's funeral. Hinderer admitted in a text, just days before the funeral, that he acquired "a 200 box" of ammunition.⁶A defendant's acquisition of

5

6 Opinion of the Court 25-11477 weapons and ammunition is probative of the defendant's intent to do more than just make "idle threats," especially when the arma- ments are obtained close in time to the threat itself. Barbour, 70 F.3d at 587. Hinderer's decision to arm himself in the days before his mother's funeral is consistent with his threat that he would "shoot everybody" at the funeral, and is probative of his intent to do ex- actly that.

Hinderer's search for a train ticket from his home in Florida to the location of the funeral in Connecticut is also probative of Hinderer's intent to follow through with his threats. As with the purchase of ammunition, Hinderer's plan to travel to Connecticut is consistent with his threat to kill everyone that showed up to the funeral. The only thing that prevented Hinderer from making it to the funeral was the timely intervention of law enforcement, who took Hinderer into custody three days before the funeral was set to occur. Our cases make clear that a defendant who takes concrete steps towards acting on a threat can receive a § 2A6.1(b)(1) en- hancement, even when their plans do not come to fruition. In Tay- lor, we upheld the application of a § 2A6.1(b)(1) enhancement to a defendant who sent threatening messages to his former high school girlfriend and her family. Taylor, 88 F.3d at 941-43. We held that

"[t]he best evidence of [the defendant's] intent to carry out his Hinderer did not object to any of the facts contained in his PSR. Because Hin- derer did not dispute the accuracy of his statements contained in the PSR be- fore the District Court, he cannot dispute those facts before this Court. Scrog- gins, 880 F.2d at 1209 n. 11.

6

25-11477 Opinion of the Court 7 threats" was that the defendant "solicited" a former cellmate to murder the threatened victims. Id. at 943 (emphasis added). Whether the defendant actually came to an agreement with his cellmate was of no moment to our analysis. The defendant's efforts to procure his cellmate's assistance was probative of the defend- ant's intentions, regardless of whether those efforts were success- ful. The same is true in this case. The fact that Hinderer did not actually make it to Connecticut does not make his search for a ticket any less probative of his intent to travel to Connecticut for purposes of carrying out his threats.

Finally, Hinderer's messages to certain friends and family warning them about his intentions and encouraging them to stay away from the funeral is further evidence of Hinderer's intent to follow through with his threats. Unlike the threatening statements that were directed towards the three victims, Hinderer's warnings to other friends and family could not be explained by an ulterior motive of causing the three victims to fear for their safety. There would be no discernable reason for Hinderer to issue warnings to those whom he did not intend to harm unless he was actually plan- ning on doing harm to those who came to the funeral.

IV.

All of the evidence relied upon by the District Court in ap- plying § 2A6.1(b)(1) was probative of Hinderer's intent to follow through with his threats. Taken together as a whole, the evidence was sufficient to satisfy the Government's burden of demonstrat- ing that the enhancement applied. Accordingly, Hinderer's sen- tence is AFFIRMED.

7