United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 19-3761

___________________________ 

United States of America

 Plaintiff - Appellee

v.

Rossi Lorathio Adams, II, also known as Rossi Adams, also known as Polo

 Defendant - Appellant

____________

Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

____________ 

Submitted: January 13, 2021

Filed: April 30, 2021 

____________

Before GRUENDER, BENTON, and STRAS, Circuit Judges. 

____________

GRUENDER, Circuit Judge. 

Rossi Lorathio Adams, II was tried and convicted of conspiracy to interfere 

with commerce by threats and violence, see 18 U.S.C. § 1951, and he was sentenced 

to 168 months’ imprisonment. On appeal, he challenges the district court’s denial 

of his Batson objection, its admission of certain evidence, its orders requiring him 

to pay certain costs and attorney fees, and its calculation of his advisory sentencing 
-2- 

guidelines range. We affirm except for that part of the district court’s order taxing 

costs for grand jury witnesses, which we reverse. 

I.

Adams was an internet entrepreneur and social-media influencer. Around

2015, Adams founded State Snaps, LLC, which he operated on various social-media 

platforms including Snapchat, Instagram, and Twitter. On these platforms, State 

Snaps displayed content submitted by its social-media followers, which often 

consisted of explicit photographs and videos. In their images and videos, State 

Snaps’ followers began including the phrase “Do It For State,” which went “viral.” 

To further his business, Adams sought to acquire the doitforstate.com internet 

domain and “doitforstate” trademark. Through internet-domain registrars such as 

GoDaddy.com, individuals may register, buy, sell, and transfer internet domains. 

The registration of a domain name grants the holder an exclusive, transferable right 

to own a particular internet address. After determining that Ethan Deyo (“Ethan”) 

already owned the doitforstate.com internet domain, Adams arrived unannounced at 

Ethan’s home in Cedar Rapids, Iowa, and asked to buy it. Ethan did not sell him the 

domain at that time but indicated he would follow up. 

Adams also learned that Brandon Miller, an acquaintance of Ethan, was using 

a “DoItForState” hashtag to promote concerts and other events around the country. 

Upon learning of Miller’s use of the hashtag, Adams contacted Miller by text 

message and insisted that he stop using it. When Miller refused, Adams sent Miller 

a text message containing gun emojis.

Subsequently, Ethan, his brother Chris Deyo (“Chris”), and Miller met with 

Adams at a local restaurant to discuss a partnership and sale of the doitforstate.com 

domain, but the negotiations were unsuccessful. Afterward, Adams repeatedly 

returned unannounced to Ethan’s home, trying to convince Ethan to sell him the 

domain name, but Adams was repeatedly rebuffed. 
-3- 

Eventually, Adams recruited his cousin, Sherman Hopkins, Jr., to break into 

Ethan’s home and force Ethan to transfer the doitforstate.com domain to Adams. 

Hopkins was a homeless felon with a lengthy criminal history that included at least 

one violent crime. 

Adams drove Hopkins to Ethan’s neighborhood several times, showing 

Hopkins where Ethan lived and conducting surveillance. Then, on June 21, 2017,

Adams picked up Hopkins and dropped him off behind Ethan’s residence. Hopkins 

was armed with a taser, which Adams provided, and a firearm, which Hopkins 

provided but which he displayed in Adams’s presence in the car. Hopkins also 

carried a demand note that Adams had provided, which described how to transfer 

the domain to Adams’s GoDaddy account. Adams planned to wait at a nearby 

Walgreens while Hopkins forced Ethan to transfer the doitforstate.com domain name 

to Adams, and once the transfer was confirmed, Adams would return to pick up 

Hopkins. 

After being dropped off, Hopkins entered Ethan’s residence, found and 

confronted Ethan, forcibly moved him to his home office, ordered him to turn on his 

computer, and showed him the demand note. While Ethan attempted the transfer, 

Hopkins tased him several times and struck him repeatedly with the firearm. As the 

transfer was processing, Hopkins cocked his firearm and threatened to “blow 

[Ethan’s] . . . head off” if the transfer was not done correctly. Ethan then tried to

wrestle the firearm away from Hopkins, at which point it discharged and shot Ethan 

in the right leg. Ethan eventually gained control over the weapon and called 911. 

After medical personnel arrived, Ethan declined pain medication, stating that he was 

“fine,” and he said he did not wish to go to the hospital. But he eventually agreed to 

go after the medical personnel encouraged him to do so. At the hospital, he was 

treated for the gunshot wound in his right leg and a laceration above his left eye. He 

was discharged after approximately two and a half hours. 
-4- 

The next day, Adams called GoDaddy several times to ask for assistance with 

his account (the same account indicated on the demand note), indicating that he was 

supposed to be getting a domain transferred to his account from another GoDaddy 

customer but did not see that the domain transfer had occurred. Some time later, 

investigators examined the demand note and found Adams’s left palm print on it. 

A grand jury returned a one-count indictment against Adams, charging him

with conspiracy to interfere with commerce by threats and violence. See 18 U.S.C. 

§ 1951. During jury selection, the Government used a peremptory strike against the 

only black prospective juror. Adams raised a Batson objection to this, which the 

district court rejected. During trial, the district court admitted over Adams’s 

objection Miller’s testimony about a video in which Adams told his followers to

send pictures to Miller’s phone, which Miller alleged caused his phone to “crash[].”

After a four-day trial, the jury found Adams guilty. At sentencing, the district 

court applied a seven-level increase to Adams’s offense level pursuant to U.S.S.G. 

§ 2B3.2(b)(3)(A)(i) because the offense involved discharge of a firearm; a four-level 

increase pursuant to § 2B3.2(b)(4)(B) because the offense resulted in a victim’s

serious bodily injury; and a two-level increase pursuant to § 2B3.2(b)(1) because the

offense involved an express or implied threat of death, bodily injury, or kidnapping. 

The district court then determined that Adams had a total offense level of 35 and a 

criminal-history category of I, yielding an advisory sentencing guidelines range of 

168 to 210 months’ imprisonment. It ultimately sentenced Adams to 168 months’ 

imprisonment. The court also found that Adams had earned a significant amount of 

money since committing the crime and therefore ordered Adams to pay $22,000 in 

court-appointed attorney fees and $3,957.45 in prosecution costs. 

Adams appeals, challenging the district court’s denial of his Batson objection, 

its admission of Miller’s testimony, its order requiring him to pay certain prosecution 

costs, its order requiring him to pay $22,000 in attorney fees, and its calculation of 

his offense level.
-5- 

II.

Adams first claims that he is entitled to a new trial because the Government 

violated Batson v. Kentucky, 476 U.S. 79 (1986), by striking the only black 

prospective juror. Adams argues that the district court clearly erred in finding that 

the Government did not purposely discriminate against the black prospective juror. 

He also contends that the district court failed to complete the third step of the Batson 

analysis and failed to determine whether the prosecutor’s explanation of the strike 

was reasonable or improbable, which he argues is required under Miller-El v. 

Cockrell, 537 U.S. 322 (2003). We review for clear error the district court’s finding 

that the Government’s peremptory strike of a black prospective juror was not 

“motivated in substantial part by discriminatory intent.” Flowers v. Mississippi, 588 

U.S. ---, 139 S. Ct. 2228, 2244 (2019). Because Adams did not raise before the 

district court his argument that the district court failed to complete the third step of 

the Batson analysis or his argument regarding Miller-El, we review these claims for 

plain error. See Hopson v. Frederickson, 961 F.2d 1374, 1377-78 (8th Cir. 1992). 

The Equal Protection Clause of the Fourteenth Amendment prohibits striking 

a juror when the strike is “motivated in substantial part by discriminatory intent.” 

Flowers, 139 S. Ct. at 2238, 2244. Batson requires a three-step, burden-shifting 

analysis to evaluate a defendant’s objection to the strike of a juror based on race. 

United States v. Jones, 245 F.3d 990, 992 (8th Cir. 2001). First, the opponent of a 

peremptory strike must make a prima facie case of racial discrimination. Id. Second, 

if the prima facie case is made, the burden of production shifts to the proponent of 

the strike, who must offer a race-neutral explanation. Id. Third, if a race-neutral 

explanation is presented, the district court must determine whether the opponent of 

the strike has proven purposeful racial discrimination, typically by demonstrating 

that the government’s reasons are pretextual. Id. at 992-93. 

Only one member of the jury venire was black. The Government used its first 

peremptory strike to remove that prospective juror, which Adams objected to under 

Batson. The Government then provided four reasons for striking the prospective 
-6- 

juror: (1) he had a recent conviction for marijuana possession; (2) he was 

unemployed; (3) he lived with his parents; and (4) when questioned about prior jury 

service mentioned on his jury questionnaire, he explained that he did not actually 

serve on the jury but had been dismissed. After Adams explained his dispute with 

the Government’s rationale, the district court overruled the Batson objection, finding

that the Government’s reasons for striking the juror were race-neutral and that

Adams had not shown these reasons were pretextual. 

Adams argues that this was clear error. He claims that the Government’s 

proffered reasons for striking the black prospective juror were pretextual because 

they were unreasonable, because white prospective jurors were treated differently, 

and because two of the Government’s four proffered reasons were factually 

incorrect. 

In determining whether the proffered reason for a strike is the actual reason or 

a pretext for race, we often look to whether jurors of other races with the same 

characteristics were struck. See Flowers, 139 S. Ct. at 2235; Devoil-El v. Groose, 

160 F.3d 1184, 1187 (8th Cir. 1998). We also consider whether we previously “have 

found similar reasons to be sufficiently race-neutral to withstand a Batson 

challenge.” Devoil-El, 160 F.3d at 1186-87. Here, it is undisputed that two of the 

Government’s four reasons for striking the black juror were factually correct: the 

juror’s prior conviction for marijuana possession and his unemployed status. Adams 

does not claim that any white prospective juror both had a prior conviction and was

unemployed. See id. at 1187 (finding no pretext where “the combination of 

characteristics was different in the non-stricken venirepersons” than in the stricken 

venirepersons); United States v. Baker, 205 F.3d 1347, 1999 WL 1144835, at *1 (8th 

Cir. 1999) (per curiam) (unpublished table decision) (finding no pretext when a 

“black venireperson was removed for a combination of reasons not attributable to 

any of the nonchallenged venirepersons”). Additionally, we have previously found 

similar reasons to be sufficiently race-neutral to withstand a Batson challenge. See 

Devoil-El, 160 F.3d at 1186-87 (upholding strike based in part on unemployed

status); United States v. Wilcox, 487 F.3d 1163, 1170 (8th Cir. 2007) (upholding 
-7- 

strike based on prior criminal conviction). Thus, we conclude that the district court 

did not clearly err in finding that the Government’s reasons were not pretextual. 

Second, Adams argues that the district court plainly erred because it did not 

conduct the third step of the Batson analysis and, even if it did, it erred by failing to 

state whether the prosecutor’s explanation of the strike was reasonable or 

improbable, which he claims is required by Miller-El, 537 U.S. at 339. But MillerEl does not impose such a requirement. Rather, it speaks to what a court may 

consider in determining whether a defendant “has proved purposeful discrimination 

at step three” of the Batson analysis. Id. at 338-39. Though Miller-El explains that 

a prosecutor’s credibility may be measured by his “demeanor,” by “how reasonable” 

or “how improbable” his explanations are, and “whether [his] proffered rationale has 

some basis in accepted trial strategy,” it does not require a court to make explicitly 

these factual findings. See id. at 339. Indeed, we do not even require district courts 

to make an explicit factual finding that no discrimination has been shown because 

the denial of a Batson objection “is itself a finding at Batson’s third step that the 

defendant failed to carry his burden of establishing . . . purposeful discrimination.” 

Edwards v. Roper, 688 F.3d 449, 457 (8th Cir. 2012) (brackets omitted). Here, the 

district court found that the Government’s reasons were not pretextual and denied 

the Batson objection. Thus, the district court did not plainly err in failing to address 

the third step of the Batson analysis and did not plainly err by failing to make

additional, more specific findings on the record. 

III.

Next, Adams argues that the district court prejudicially abused its discretion

by admitting testimony from Miller that Adams alleges is hearsay. “We review a 

district court’s evidentiary decisions under an abuse of discretion standard, but even 

if the district court erred in admitting the evidence, we will not reverse if the 

admission of the evidence was harmless.” United States v. Walker, 393 F.3d 842, 

848 (8th Cir. 2005) (internal quotation marks, brackets, and footnote omitted); see
-8- 

also Fed. R. Crim. P. 52(a). Here, we need not reach whether the admitted testimony

was inadmissible hearsay because its admission was harmless. 

At trial, the Government called Miller as a witness. Miller is an event 

promoter who was using “Do It For State” as a hashtag in his promotional materials. 

In March 2015, Adams contacted Miller and asked him to stop using the hashtag, 

but Miller continued to use it. At trial, Miller testified over Adams’s objection that

(1) after he continued using the hashtag, he received “like a thousand messages 

through [his] phone” from Adams’s social-media followers, which “crashed” his 

phone, and (2) Adams had placed a video on Adams’s social-media account asking 

his followers to send such messages to Miller. 

“An evidentiary error is harmless when, after reviewing the entire record, we 

determine that the substantial rights of the defendant were unaffected, and that the 

error did not influence or had only a slight influence on the verdict.” United States 

v. Love, 521 F.3d 1007, 1009 (8th Cir. 2008). Here, admission of this testimony did 

not affect the verdict because the testimony concerned a collateral issue. See Ball v. 

Wyrick, 547 F.2d 78, 80 (8th Cir. 1977). Adams’s conviction was for conspiring to 

force Ethan to transfer the doitforstate.com domain to Adams, not for his statements 

toward Miller. There was overwhelming evidence of Adams’s role in Hopkins’s

violent attempt to force Ethan to transfer the domain to Adams. Not only did 

Hopkins testify that Adams was the mastermind behind the scheme, but Adams’s 

left palm print was found on the demand note. In addition, the day after the home 

invasion, Adams called GoDaddy several times and made statements implicating his 

involvement in the home invasion. Because there was overwhelming evidence that 

Adams committed the crime of conspiracy to interfere with commerce by threats and 

violence, Miller’s testimony regarding this collateral issue did not affect Adams’s

substantial rights and did not have more than a slight influence on the verdict. 

Accordingly, any error was harmless. 
-9- 

IV.

Adams next argues that the district court wrongly ordered him to pay 

prosecution costs that included the costs of witnesses who testified before the grand 

jury and the costs related to a Government witness’s attendance at trial when that 

witness did not testify. We review an award of costs for an abuse of discretion. 

United States v. Hiland, 909 F.2d 1114, 1142 (8th Cir. 1990). However, “[a] district 

court by definition abuses its discretion when it makes an error of law.” Koon v. 

United States, 518 U.S. 81, 100 (1996). 

“Under 28 U.S.C. § 1918(b), the district court has the discretionary authority 

to tax the ‘costs of prosecution’ against the defendant in any non-capital case.” 

Hiland, 909 F.2d at 1141 (footnote omitted). “Absent explicit statutory or 

contractual authorization to the contrary, federal district courts may tax as costs only 

those expenses listed in [28 U.S.C.] § 1920.” Id. at 1142.

Adams first argues that the district court abused its discretion by assessing 

costs for witnesses who testified before the grand jury because those costs are not 

taxable against him. We agree. Section 1920 “does not include the costs of 

investigation leading to indictment.” Id.; see also Biggerstaff v. United States, 260 

F. 926, 927 (8th Cir. 1919) (suggesting that “prosecution” does not begin until the 

grand jury returns an indictment because, “[u]ntil [then,] there is no case or cause 

against the accused to be prosecuted”). These costs were not “costs of prosecution” 

and thus were not taxable against Adams, so we reverse the part of the district court’s 

order imposing them. 

Adams also argues that the district court abused its discretion in assessing 

costs for witness K.G., who attended but did not testify at trial. We disagree. 

Generally, “in order for fees to be taxable for witnesses who appear voluntarily and 

who are not called to testify, it must be shown that their testimony is material.” 

Spiritwood Grain Co. v. N. Pac. Ry. Co., 179 F.2d 338, 344 (8th Cir. 1950). Because 

they do not testify, “there is a rebuttable presumption that their testimony is not 
-10- 

material.” Id. “The presumption is overcome, however, if it appears that an order 

of court or other circumstance rendered their testimony unnecessary.” Id.; see also 

Stanley v. Cottrell, Inc., 784 F.3d 454, 467 (8th Cir. 2015). 

K.G. was a GoDaddy employee whose testimony the Government needed in 

order to lay the foundation for the admission of certain GoDaddy business records. 

Before trial, Adams’s counsel agreed to stipulate to the admissibility of the GoDaddy 

business records on the condition that the Government call K.G. as a witness so that 

he could cross-examine her. Thus, K.G.’s testimony was material. The reason that 

K.G. did not testify was because, upon Adams’s request, the Government agreed to 

allow Adams to put on a witness during the Government’s case-in-chief, which gave 

the Government less time to present the witnesses it intended to present that day. 

When it became clear that there would no longer be enough time for the Government 

to call K.G. that day, the Government told the district court that it would allow K.G. 

to leave, and Adams did not object. The Government’s attempted accommodation 

of Adams’s out-of-order witness and Adams’s failure to object to the Government’s

allowing K.G. to leave constituted a “circumstance [that] rendered [K.G.’s] 

testimony unnecessary.” See Spiritwood, 179 F.2d at 344. Therefore, the district 

court did not abuse its discretion in assessing witness costs for K.G. 

V.

Adams also argues that the district court erred in ordering him to reimburse 

the government $22,000 in attorney fees (a little less than half of the total attorney 

fees incurred on his behalf) after determining that Adams was able to pay for his 

court-appointed attorney. Adams asserts that, under 18 U.S.C. § 3006A(d)(2), the 

maximum amount a court-appointed attorney could claim in fees at the time of his 

trial was $11,500. This argument presents a question of statutory interpretation, 

which we consider de novo. See Lochridge v. Lindsey Mgmt. Co., 824 F.3d 780, 782 

(8th Cir. 2016). 
-11- 

District courts must have in place a plan for “furnishing representation for any 

person financially unable to obtain adequate representation.” 18 U.S.C. § 3006A(a). 

“A person for whom counsel is appointed shall be represented at every stage of the 

proceedings,” but “[i]f at any time after the appointment of counsel . . . the court 

finds that the person is financially able to obtain counsel or to make partial payment 

for the representation, it may terminate the appointment of counsel or authorize 

payment as provided in [§ 3006A(f)], as the interests of justice may dictate.” Id. 

§ 3006A(c). In turn, § 3006A(f) provides that “[w]henever . . . the court finds that 

funds are available for payment from or on behalf of a person furnished 

representation, it may authorize or direct that such funds be paid to the appointed 

attorney . . . or to the court . . . as a reimbursement.” 

In this case, the district court found that Adams had the financial resources to 

reimburse the government for part of the costs of his court-appointed attorney. 

Adams does not dispute this finding, but he argues that the amount he must 

reimburse is capped by § 3006A(d)(2). His reliance on § 3006A(d)(2) is misplaced, 

however, as that section does not limit how much a nonindigent defendant such as 

Adams must reimburse the government for his own defense. Nothing in § 3006A(c) 

or (f), which apply here and permit a court to order reimbursement, limits such 

reimbursement to the maximum amount referenced in § 3006A(d)(2). See, e.g., 

United States v. Lefkowitz, 125 F.3d 608, 621 (8th Cir. 1997) (upholding a district 

court order that a defendant reimburse the government $316,693.70 for the costs of 

his defense because “[s]uch an order is expressly authorized by 18 U.S.C. 

§ 3006A(f)”). In fact, the court itself may, in some circumstances, award attorney 

fees beyond the maximum amounts described in § 3006A(d)(1)-(2). See 18 U.S.C. 

§ 3006A(d)(3) (permitting the court to waive the maximum amounts in 

§ 3006A(d)(1)-(2) for extended or complex representation). The statute does not 

limit reimbursement of attorney fees by a nonindigent defendant. Id. § 3006A(c), 

(f); see also Lefkowitz, 125 F.3d at 621; United States v. Konrad, 730 F.3d 343, 351-

52 (3d Cir. 2013) (upholding a district court’s order that a defendant pay the costs 

of his defense because he could afford it and refusing to limit reimbursement to the 
-12- 

“court-appointed counsel” rates). Therefore, we affirm the district court’s 

assessment of attorney fees.

VI.

Finally, Adams claims that the district court procedurally erred in imposing 

offense-level increases under U.S.S.G. § 2B3.2(b)(3)(A)(i), (4)(B), and (1) when 

calculating his total offense level. “In reviewing a sentence for significant 

procedural error, we review a district court’s factual findings for clear error and its 

interpretation and application of the guidelines de novo.” United States v. Marshall, 

891 F.3d 716, 719 (8th Cir. 2018) (per curiam).

A.

Section 2B3.2(b)(3)(A)(i) authorizes a seven-level increase to a defendant’s 

offense level “[i]f a firearm was discharged” as part of the offense. “[I]n the case of 

a jointly undertaken criminal activity,” the court may consider “all acts and 

omissions of others that were . . . reasonably foreseeable in connection with that 

criminal activity” in calculating the defendant’s sentence. See § 1B1.3(a)(1)(B)(iii). 

Here, the district court imposed a seven-level increase because it found that Hopkins 

discharged a firearm during the course of the offense and that this was reasonably 

foreseeable to Adams. Adams argues that Hopkins’s discharge of the firearm was 

not reasonably foreseeable to him.

“Relevant to a determination of reasonable foreseeability is whether or to what 

extent a defendant benefitted from his co-conspirator’s activities.” United States v. 

Flores, 73 F.3d 826, 833 (8th Cir. 1996). “An additional relevant factor is whether 

the defendant demonstrated a substantial level of commitment to the conspiracy.” 

Id. The district court found both factors present here. As it found, Hopkins entered 

Ethan’s home at Adams’s instruction to force Ethan to transfer the doitforstate.com 

domain name to Adams. It found that Adams’s attempts to obtain the domain name 

“increased in vehemency” over time and that he was the orchestrator of the offense. 
-13- 

Additionally, the district court found that Adams was aware of Hopkins’s violent 

criminal history, that he saw Hopkins with the firearm before he entered Ethan’s 

home, and that he “intended” violence be used to force Ethan to comply. The district 

court relied on these facts to find that Hopkins’s discharge of the firearm was 

reasonably foreseeable to Adams. 

Each of these facts finds ample support in the trial record, and the district court 

did not clearly err in finding them. In light of these facts, the district court did not 

err in concluding that Hopkins’s discharge of the firearm was reasonably foreseeable 

so as to trigger the seven-level increase under § 2B3.2(b)(3)(A)(i). See, e.g., § 1B1.3 

cmt. n.4(B)(i) (stating that a “getaway driver in an armed bank robbery” would be

responsible for an assault on a bank teller because the assault was “within the scope 

and in furtherance of the jointly undertaken criminal activity (the robbery), and was 

reasonably foreseeable in connection with that criminal activity (given the nature of 

the offense)”).

1

B. 

Section 2B3.2(b)(4)(B) authorizes a four-level increase to the defendant’s 

offense level if a victim of the offense sustained “serious bodily injury.” A “serious 

bodily injury” is an “injury involving extreme physical pain or the protracted 

impairment of a function of a bodily member, organ, or mental faculty; or requiring 

medical intervention such as surgery, hospitalization, or physical rehabilitation.” 

§ 1B1.1, cmt. n.1(M). The district court imposed this four-level increase because it 

found that Ethan’s gunshot wound was a “serious bodily injury.” Adams disputes 

this conclusion. 

We agree with the district court that Ethan’s gunshot wound constitutes a 

“serious bodily injury” within the meaning of § 2B3.2(b)(4)(B). This injury required 

1

The grounds for Adams’s two other increases discussed below—that a victim

sustained serious bodily injury and that the offense involved a threat of death, bodily 

injury, or kidnapping—were reasonably foreseeable to Adams for the same reasons. 
-14- 

medical intervention—Ethan was hospitalized for approximately two and a half 

hours while being treated, including receiving stitches. Adams counters that this 

hospital stay was not long enough to constitute “hospitalization.” Even if Adams is

correct, “hospitalization” is only one example of “medical intervention.” If this 

hospital stay was too short to constitute “hospitalization,” the gunshot wound still 

required medical intervention. Therefore, it constitutes a “serious bodily injury” 

under § 2B3.2(b)(4)(B). See, e.g., United States v. Mason, 5 F.3d 532, 1993 WL 

335764, at *1 (8th Cir. Sept. 7, 1993) (per curiam) (unpublished table decision) 

(concluding that a wound to the victim’s head from being struck with one of the 

defendant’s revolvers was a “serious bodily injury” under the guidelines, even 

though the victim initially refused medical attention and only went to the emergency 

room the next morning, because the wound “was ‘quite deep,’ was bleeding 

significantly, and required stitches”). The district court thus did not err in 

concluding Ethan’s gunshot wound was a “serious bodily injury,” triggering a fourlevel increase under § 2B3.2(b)(4)(B). 

C. 

Lastly, Adams claims the district court erred when it imposed a two-level 

increase under § 2B3.2(b)(1) for committing an “offense involv[ing] an express or 

implied threat of death, bodily injury, or kidnapping” because this two-level increase

is also an element of the offense and therefore “baked in” to the base offense level. 

 Adams’s contention is essentially a double-counting objection. “Doublecounting at sentencing occurs when one part of the Guidelines is applied to increase 

a defendant’s punishment on account of a kind of harm that has already been fully 

accounted for by application of another part of the Guidelines.” United States v. 

Bryant, 913 F.3d 783, 787 (8th Cir. 2019) (internal quotation marks omitted). “[A] 

court impermissibly double-counts when precisely the same aspect of a defendant’s 

conduct factors into his sentence in two separate ways” unless “the Sentencing 

Commission so intended and each guideline section furthers an independent purpose 

of sentencing.” Id. (internal quotation marks omitted).
-15- 

Here, no double counting occurred because the increase takes account of a 

harm that is not fully accounted for by the base offense in the sentencing guidelines 

or the statute of conviction. The base offense, U.S.S.G. § 2B3.2, does not require 

threats of death, bodily injury, or kidnapping. See U.S.S.G. § 2B3.2 cmt. n.2 

(explaining that this guideline applies to threats that are not threats of physical injury 

to a person); see also United States v. Williams, 693 F.3d 1067, 1074 (9th Cir. 2012) 

(holding that the base offense does not require the behavior necessary to qualify for 

the increase). Neither does the statute of conviction. See 18 U.S.C. § 1951(a), (b)(2) 

(prohibiting, among other things, extortion, which includes “obtaining the property 

of another . . . by wrongful use of . . . fear”); see also United States v. Jones, 997 

F.2d 967, 969 (1st Cir. 1993) (holding that 18 U.S.C. § 1951 “criminalizes a wide 

array of fear-producing threats” and does not require a “threat of bodily harm”). But 

the increase in § 2B3.2(b)(1) does. Therefore, no double counting occurred. See

Williams, 693 F.3d at 1074 (holding that there is no double counting when a court 

applies the base offense under § 2B3.2 and the increase under § 2B3.2(b)(1) because 

the base offense does not require the behavior necessary to qualify for the increase); 

Jones, 997 F.2d at 969 (holding that the district court did not err in applying the 

increase under § 2B3.2(b)(1) when the same threat factored into the base offense 

level and 18 U.S.C. § 1951 was the statute of conviction). Therefore, the district 

court did not err by applying the increase in § 2B3.2(b)(1).

2

 

2

To the extent Adams claims that § 3A1.3’s cmt. n.2 prevents a court from 

imposing both the base offense level in § 2B3.2(a) and the increase in § 2B3.2(b)(1), 

his argument has no merit, as § 3A1.3’s cmt. n.2 does not apply to § 2B3.2. In 

addition, Adams’s claim that United States v. Werlinger, 894 F.2d 1015 (8th Cir. 

1990), compels a different result is incorrect. Werlinger held that when the basis for 

one increase was the same as the basis for another, it was double counting to apply 

both. Id. at 1016-19. Adams argues that this implies that when the basis for an 

increase is also necessary for the base offense, it is double counting to apply the 

increase. Even if Adams is right, however, the basis for the § 2B3.2(b)(1) increase 

that the district court applied here is not necessary for Adams’s base offense as we 

have discussed.
-16- 

VII.

For the foregoing reasons, we reverse that portion of the district court’s order 

taxing costs for grand jury witnesses, but as to every other issue Adams raises on 

appeal, we affirm. 

______________________________