RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0236p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT R. DOGGART,

Defendant-Appellant.

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No. 17-5813

Appeal from the United States District Court

for the Eastern District of Tennessee of Chattanooga.

No. 1:15-cr-00039-1—Curtis L. Collier, Chief District Judge.

Argued: October 4, 2018

Decided and Filed: October 18, 2018

Before: SUTTON, McKEAGUE, and THAPAR, Circuit Judges.

_________________

COUNSEL

ARGUED: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN 

TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Perry H. Piper, UNITED STATES 

ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee. ON BRIEF: Jennifer Niles 

Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, 

Tennessee, for Appellant. Perry H. Piper, UNITED STATES ATTORNEY’S OFFICE, 

Chattanooga, Tennessee, Thomas E. Chandler, Anna M. Baldwin, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

>
No. 17-5813 United States v. Doggart Page 2

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OPINION

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SUTTON, Circuit Judge. Rare is the defendant who insists that we find him guilty. 

Rarer still is the defendant who gets his way.

Robert Doggart is on his way to accomplishing both. After federal agents arrested 

Doggart for plotting to attack an Islamic community at the foothills of the Catskill Mountains, he 

attempted to plead guilty to making a threat in interstate commerce, a crime carrying a sentence 

of no more than five years. But the district court found that he had not made a cognizable threat 

and rejected his plea under Criminal Rule 11. After that and after the government added some 

charges, a jury convicted Doggart of solicitation to damage religious property and solicitation to 

commit arson, leaving him with a sentence of almost 20 years. Because the district court 

wrongly rejected the plea agreement, we reverse its decision to reject the agreement, leave in 

place for now the later convictions, and remand for it to reconsider the agreement under the 

correct law. 

I. 

Islamberg is a community of around 40 Muslim families near Hancock, New York. It is 

a self-organized and self-named community, though not a recognized municipality, that sits on 

68 acres privately owned by two residents. Along with its private homes, Islamberg has a few 

shared buildings, including a mosque. In recent years, inaccurate reporting about Islamberg has 

found its way into the news, including a story suggesting the community supported terrorism.

Doggart is from Tennessee. After running unsuccessfully for Congress in 2014, he 

started investigating reports about terrorist training camps in Tennessee. One thing led to 

another, and before long he became obsessed with Islamberg and began to worry that the 

residents of Islamberg planned to attack New York City.

In February 2015, Doggart posted a message on Facebook calling for the destruction of 

“Target 3”—his code name for Islamberg—and sought help from other “gunners.” R. 14 at 2–4. 
No. 17-5813 United States v. Doggart Page 3

A confidential source for the FBI saw his message and responded to it. Doggart and the source 

spoke numerous times over the phone as Doggart tried to recruit him to join his attack on 

Islamberg. On March 6, Doggart told the source that “those guys [in Islamberg have] to be 

killed. Their buildings need to be burnt down. If we can get in there and do that not losing a 

man, even the better.” Id. at 3. Doggart met with the source twice. During the meetings, 

Doggart stressed his desire to burn down Islamberg’s three main buildings and even kill the 

town’s residents if necessary. He also showed the informant a shotgun and M4 rifle, the 

weapons he planned to use for the job.

Doggart also tried to recruit a South Carolina man named William Tint to join him in the 

attack. Tint offered to help Doggart, noting that he knew a demolitions expert who could help 

them burn down Islamberg’s main buildings. Doggart replied enthusiastically.

Unwilling to let things proceed any further, the FBI arrested Doggart. The government 

charged him with one count of making a threat in interstate commerce, based on his March 6 

phone call with the confidential source. The parties submitted a plea agreement under which 

Doggart would plead guilty to the threat charge and the government would not oppose a sentence 

reduction for acceptance of responsibility. The district court rejected the plea, reasoning that it 

did not contain a sufficient basis for convicting Doggart of making a threat.

The government filed a new indictment charging Doggart with solicitation to damage 

religious property. This time Doggart refused to plead guilty. The government filed a 

superseding indictment containing four charges: solicitation to damage religious property, 

solicitation to commit arson against the mosque, and two counts of making a threat in interstate 

commerce. After an eight-day trial, a jury convicted Doggart on all four charges. Doggart 

moved for acquittal on all of them. The district court granted his motion with respect to the two 

threat counts, concluding once again that Doggart had not made cognizable threats. The court 

sentenced him to 235 months on the remaining two solicitation convictions.

II.

Doggart maintains that the district court had no business rejecting his guilty plea, a claim 

that receives abuse-of-discretion review. See United States v. Cota-Luna, 891 F.3d 639, 648 (6th 
No. 17-5813 United States v. Doggart Page 4

Cir. 2018). A mistake of law—including a mistake about the meaning of a criminal statute—

amounts to an abuse of discretion. Koon v. United States, 518 U.S. 81, 100 (1996).

Criminal defendants have no right to require district courts to accept their guilty pleas. 

Santobello v. New York, 404 U.S. 257, 262 (1971). But a district court must provide a sound 

reason for refusing a plea. Cota-Luna, 891 F.3d at 647. A misunderstanding of law does not 

count as a sound reason for rejecting a guilty plea and thus amounts to an abuse of discretion. 

See id. at 648–50; id. at 652 (Kethledge, J., concurring in the judgment); see also United States v. 

Rea-Beltran, 457 F.3d 695, 700–02 (7th Cir. 2006). 

Under Criminal Rule 11(b)(3), a district court “must determine that there is a factual 

basis for the plea” before accepting it—that the defendant’s admitted conduct in other words 

amounts to an admitted crime, see McCarthy v. United States, 394 U.S. 459, 467 (1969). As the 

district court saw it, Doggart’s admitted conduct—telling the confidential source that he planned 

to destroy several buildings and kill residents of Islamberg—did not violate the threat statute 

because his statement did not amount to an objective threat. 18 U.S.C. § 875(c).

Was that correct? We don’t think so.

Section 875(c) punishes the transmission in interstate commerce of “any communication 

containing . . . any threat to injure the person of another.” To convict a person under this law, 

the government must prove that: (1) the defendant sent a message in interstate commerce; (2) a 

reasonable observer would view the message as a threat; and (3) the defendant intended the 

message as a threat. See Elonis v. United States, 135 S. Ct. 2001, 2011 (2015); United States v. 

Jeffries, 692 F.3d 473, 478 (6th Cir. 2012).

Element one is easy. Doggart knowingly sent a message in interstate commerce—his 

communication with the FBI source. 

Element two is a closer call. But the factual statements in support of the plea satisfy that 

element too. A reasonable observer would have understood his message as an objectively 

serious expression of an intent to inflict loss or harm. 
No. 17-5813 United States v. Doggart Page 5

Pertinent definitions of threat all revolve around a single theme: an expression of an 

intent to inflict loss or harm. See Jeffries, 692 F.3d at 483–84 (Sutton, J., dubitante); see also

Elonis, 135 S. Ct. at 2008; id. at 2014 (Alito, J., concurring in part and dissenting in part). That’s 

what the Oxford English Dictionary says: “[T]o declare (usually unconditionally) one’s 

intention of inflicting injury upon” a person. 11 Oxford English Dictionary 353 (1933). So does 

Webster’s Second: “Law, specif., an expression of an intention to inflict loss or harm on another 

by illegal means.” Webster’s New International Dictionary 2633 (2d ed. 1942). And so too does 

Black’s: “A communicated intent to inflict harm or loss on another.” Black’s Law Dictionary

1708 (10th ed. 2014). 

Every circuit to weigh in on the matter has taken the same side on this point. See United 

States v. Stefanik, 674 F.3d 71, 77 (1st Cir. 2012) (“serious expression of intent to inflict bodily 

injury” (quotation omitted)); United States v. Turner, 720 F.3d 411, 427 (2d Cir. 2013) (“serious 

expression of an intent to inflict injury”); United States v. Stock, 728 F.3d 287, 293 (3d Cir. 

2013) (“communications expressing an intent to inflict injury in the present or future”); United 

States v. White, 810 F.3d 212, 220 (4th Cir. 2016) (“serious expression of an intent to do harm”); 

United States v. Morales, 272 F.3d 284, 287 (5th Cir. 2001) (communication that “create[s] 

apprehension that its originator will act according to its tenor” (quotation omitted)); United 

States v. Stewart, 411 F.3d 825, 828 (7th Cir. 2005) (“serious expression of an intention to inflict 

bodily harm” (quotation omitted)); United States v. Jongewaard, 567 F.3d 336, 340 (8th Cir. 

2009) (“express[ion of] an intention to inflict harm, loss, evil, injury, or damage on another”); 

Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 

1075 (9th Cir. 2002) (en banc) (“expression of an intention to inflict evil, injury, or damage on 

another” (quotation omitted)); United States v. Heineman, 767 F.3d 970, 972 (10th Cir. 2014) 

(“declaration of intention, purpose, design, goal, or determination to inflict [bodily injury] on 

another” (quotation omitted)); United States v. Alaboud, 347 F.3d 1293, 1296–97 (11th Cir. 

2003) (“serious expression of an intention to inflict bodily harm” (quotation omitted)). 

Measured by this definition, Doggart’s statement qualified objectively as a threat. 

Doggart told the confidential informant that “those guys [in Islamberg have] to be killed. Their 

buildings need to be burnt down. If we can get in there and do that not losing a man, even the 
No. 17-5813 United States v. Doggart Page 6

better.” R. 14 at 3. A reasonable observer eavesdropping on that conversation would have 

understood Doggart’s words to be a serious expression of his intent to inflict harm on the 

residents of Islamberg. Nothing about the context of the statement suggested he was joking. 

Nothing suggested he was engaged in some kind of bigoted rant. Nothing suggested this was a 

passing fancy. Nothing in short would have suggested to a reasonable observer that he did not 

mean what he said. 

The question, keep in mind, is not whether Doggart spoke or acted reasonably; few 

would-be criminals meet that requirement. The relevant question is whether a reasonable 

observer would take his words to be an authentic threat. As to that, nothing about the words 

themselves or the context in which he uttered them diminished the meaning conveyed by them.

None of this, by the way, means that every attempted crime is a threat or just the same in 

the other direction. Many attempts involve just actions, not threatening statements. And just 

because a defendant makes a threat does not make him liable for attempt. While the threat 

statute requires that the defendant intended to make a threat, Elonis, 135 S. Ct. at 2012, attempt 

statutes require that the defendant intended to commit the underlying offense, United States v. 

LaPointe, 690 F.3d 434, 444 (6th Cir. 2012). Attempts and threats remain distinct.

So too for solicitation and conspiracy. Solicitation requires that the defendant attempted 

to induce another person to commit a federal felony. 18 U.S.C. § 373(a). But an individual may 

commit a threat alone. And while the threat statute requires an interstate message expressing 

intent to harm another person, the solicitation statute reaches even face-to-face efforts to 

persuade another to commit a federal felony involving the use of force against property. Id. 

Threats and solicitations remain distinct. See United States v. Stewart, 420 F.3d 1007, 1013 (9th 

Cir. 2005). As for conspiracy, it requires an agreement between people to act together in 

committing any federal offense and an overt act in furtherance of the agreement. 18 U.S.C. 

§ 371; United States v. Mack, 808 F.3d 1074, 1080 (6th Cir. 2015). The conspiracy statute is 

thus broader than the threat statute (reaching agreements to commit offenses that do not harm 

other people) and narrower (requiring an agreement rather than one person’s expression of 

intent).
No. 17-5813 United States v. Doggart Page 7

But some overlap between the offenses remains. A defendant who tells his accomplice 

he plans to kill someone may be liable for making a threat, even if he says it in the course of 

another crime. That reality follows from the statute. Section 875(c) does not require the 

defendant to communicate the threat to the victim. Jeffries, 692 F.3d at 483. And many courts 

have concluded that a statement made to an associate or potential accomplice can be a threat. 

See United States v. Spring, 305 F.3d 276, 280–81 (4th Cir. 2002); United States v. Cope, 283 F. 

App’x 384, 387–88 (6th Cir. 2008); United States v. Siegler, 272 F.3d 975, 978 (7th Cir. 2001); 

Stewart, 420 F.3d at 1016; United States v. Martin, 163 F.3d 1212, 1215–17 (10th Cir. 1998). 

Doggart’s statement was no different.

The district court rejected the plea agreement because it thought Doggart did not make an 

objective threat. In its defense, one of our cases, United States v. Alkhabaz, 104 F.3d 1492 (6th 

Cir. 1997), offers some support for its decision. Alkhabaz concluded that a threat required two

things when it comes to the second element: that a reasonable observer would understand the 

words (1) as a serious expression of an intent to harm and (2) “to effect some change or achieve 

some goal through intimidation.” Id. at 1495. But time and an intervening Supreme Court 

decision have passed by this additional gloss on the second element.

Elonis v. United States recognized that, to be a true threat, the defendant must 

subjectively intend his communication to be threatening. 135 S. Ct. at 2011. It said nothing 

about an intimidation requirement. The point of including this mens rea requirement was 

twofold: It respected the customary requirement that a crime contain a state-of-mind element, 

and it was consistent with the dictionary definition of “threat.” Id. at 2008–11. Just as 

importantly, the state-of-mind requirement alleviated the concerns that motivated Alkhabaz—the 

risk, say, that a prosecutor who mailed a defendant’s threatening letters to another government 

official for review might be criminally liable for making a threat. Alkhabaz, 104 F.3d at 1494.

We cannot fault the district court for following one of our precedents. But in view of 

Elonis, we have no such obligation and now make clear that this aspect of Alkhabaz is no longer 

the law of the circuit. 
No. 17-5813 United States v. Doggart Page 8

When a district court mistakenly rejects a guilty plea and that mistake prejudices the 

defendant, the proper remedy is to reinstate the plea offer. See Rea-Beltran, 457 F.3d at 702–03. 

Doggart suffered plenty of prejudice from this misreading of the statute: He was sentenced to 

almost 20 years in prison rather than the maximum of five years he would have faced had the 

court accepted his plea. To give Doggart the benefit of his bargain, we must remand the case to 

the district court to reevaluate the plea agreement under the correct definition of a threat.

When the district court originally considered the plea agreement, it had no reason to

examine whether the agreement satisfied the third element of the threat statute: that Doggart 

intended his statement as a threat. Elonis, 135 S. Ct. at 2011. On remand, the district court 

should determine whether Doggart intended his statement as a serious expression of an intent to 

harm.

For these reasons, we reverse the district court’s decision to reject the plea agreement and 

remand the case to permit it to reconsider the agreement under current law. For now, we need 

not address Doggart’s other arguments on appeal, and we will retain jurisdiction of these issues 

pending the district court’s reconsideration. If the court finds that Doggart intended to make a 

threat, it must allow him to accept the plea agreement. If he pleads guilty under the terms of the 

agreement and if no one challenges the plea, we will then vacate Doggart’s other convictions. If, 

on the other hand, Doggart ultimately decides not to plead guilty or the district court determines 

that Doggart did not intend his statement as a threat, Doggart’s convictions will remain in place, 

and we will proceed with his appeal as to the remaining issues as well as any other potential 

appeal. In view of the outstanding matters to be resolved, no judgment will issue at this time.