Sentencing; Hobbs Act extortion; 18 USC § 1951; Stalking; §§ 2261A(2)(b) & 2261(b)(5); Wire fraud; § 1343; Sentencing guidelines; Extortion by force or threat of injury or serious damage; USSG § 2B3.2; Blackmail & similar forms of extortion; § 2B3.3; United States v Douglas; Sentencing enhancements; Firearm discharge; § 2B3.2(b)(3)(A)(i); Permanent or life-threatening bodily injury; § 2B3.2(b)(4)(C); Relevant conduct; § 1B1.3(a)(1)(A); Willfully caused; United States v Hill; Harmless error; United States v Alvarado; Substantive reasonableness; Upward variance; 18 USC § 3553(a); Grouped offenses; USSG § 3D1.2; Consecutive sentences; Jenkins v United States

[This appeal was from the WD-MI.] The court held that the district court properly used USSG § 2B3.2 to set defendant’s base offense level, improperly applied two sentencing enhancements, and that defendant’s substantive-reasonableness arguments would not succeed. He was convicted of attempted Hobbs Act extortion, stalking, and wire fraud after using a false online identity in a sextortion scheme against victim B.G., who later died by suicide. The district court used the extortion guideline, applied firearm-discharge and permanent-or-life-threatening-injury enhancements based on the suicide, varied upward, and imposed a total 272-month sentence. On appeal, the court first held that § 2B3.2 applied rather than § 2B3.3 because defendant’s threats were “only possible because Defendant created and entrapped B.G. in a sexual extortion scheme entirely of Defendant’s own making,” and he was not merely threatening to “‘mak[e] public an established fact.’” The court next held that the firearm-discharge and bodily-injury enhancements were improper under Hill because there was no indication defendant “willfully caused” B.G. to shoot himself, and “the mere fact that the defendant created the conditions in which the shooting was foreseeable was not enough.” The court further concluded the error was not harmless because the enhancements increased the offense level by 11 points, and there was no indication the district court would have imposed the same sentence without them. While resentencing was required, the court held that defendant’s arbitrariness challenge lacked merit because the district court imposed 212 months on Counts 1 and 3 through 7, plus a consecutive 60 months on Count 2, and “‘there is no obstacle to stacking a defendant’s sentences for grouped offenses.’” It also rejected his claim that the district court gave undue weight to B.G.’s suicide, reasoning that the district court discussed defendant’s extensive criminal history, danger to the public, deterrence, and other § 3553(a) factors, and a “single mention” of the suicide did not show undue weight. Affirmed in part, reversed in part, and remanded for resentencing without the enhancements.