UNITED STATES

v.

CLARE THERESE GRADY

BRANCH, Circuit Judge:

In the late-night hours of April 4, 2018, Clare Grady, Martha Hennessy, Carmen Trotta, and several others associated with the Plowshares movement [fn 1] surreptitiously and illegally entered the Naval Submarine Base Kings Bay in St. Marys, Georgia. Once inside the Kings Bay naval base, the defendants executed their plans to engage in religious protest of nuclear weapons by engaging in what they refer to as "symbolic disarmament.” These actions, however, were far more than symbolic; in fact, they were incredibly destructive—spray painting numerous anti-nuclear and religious messages on the sidewalk and on monuments; pouring donated blood from the movement's members on the door of a building and the sidewalk; hammering on a decommissioned missile display; placing crime scene tape around the base; removing signage and part of a monument; and cutting through wiring and fencing in order to enter a highly secured area and display banners protesting nuclear

Jointly, the trio argue that (1) the district court erred in denying their respective motions to dismiss the indictment under the Religious Freedom and Restoration Act (“RFRA”), and (2) the district court erred in holding them jointly and severally liable for the full restitution amount.

Additionally, Hennessy and Trotta jointly argue that (3) the district court abused its discretion when it denied their respective requests for a guidelines reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.

Turning to their individual arguments, Hennessy argues that (4) the district court abused its discretion in increasing her offense level under U.S.S.G. § 2B1.1(b)(1)(C) when it treated the total damages amount as the loss amount. And Grady argues that the district court erred in (5) not giving her requested mistake-of-fact jury instruction, and (6) failing to consider or address RFRA at sentencing. After careful consideration and with the benefit of oral argument, we affirm.

I. Background

Naval Submarine Base Kings Bay is home to the only strategic weapons facility on the Eastern Seaboard and houses numerous submarines and critical assets. The Kings Bay naval base is large, covering approximately¹⁷,000 acres with²⁶ miles of perimeter fencing and employing approximately¹⁰,500 people as part of the staff or crew. The facility is highly secured, with only three authorized points of entry, which are manned at all times by armed guards. The base area behind the perimeter fencing is not open to the general public. Anyone who attempts to gain access to the base other than through the three main gates is trespassing, and guards are authorized to exercise deadly force against unauthorized entry or trespassers if necessary.

Other higher security areas within the perimeter fencing of the Kings Bay naval base are protected by additional barriers. For instance, an area referred to as the “Limited Area” is separated from other areas of the base by double lines of fencing and concertina wire. [fn 2] Written warnings that deadly force may be used against intruders are posted along the fencing and an oral announcement to that effect is played over a loudspeaker

And outside the gates of the naval base is a static submarine display known as the Bancroft Memorial. Several times a year, different groups request and receive permission from the Kings Bay naval base&#x²⁷;s Public Affairs Office to demonstrate or protest at the Bancroft Memorial. For instance, the group Pax Christi holds a candlelight vigil twice a year in protest of the operations on the base. And another group demonstrates around the anniversary of the Hiroshima and Nagasaki bombings.

In this case, however, the defendants did not request or receive permission to protest at the Bancroft Memorial site or anywhere else. Instead, after approximately two years of secret planning, under the cover of darkness on April⁴, 2018, Grady, Hennessy, Trotta, and four other members of the Plowshares Movement equipped with spray paint, bolt cutters, hammers, blood, banners, crime scene tape, Go-Pro cameras, and other tools cut a padlock on the perimeter fencing of the Kings Bay naval base, opened a gate, and illegally entered the base. The group intended to engage in symbolic disarmament as part of their faith, which they profess requires them to "practice peaceful activism and prevent nuclear war." Once inside the Kings Bay naval base, the seven individuals split into groups and proceeded to different areas of the base, including the administration

Grady and Hennessy went to the administration building where they spray-painted numerous anti-nuclear and religious messages on the sidewalk. They poured bottles of human blood on the door of the building and sidewalk, and placed crime scene tape around the building. They also taped an "indictment" [fn³] of the

KINGS BAY PLOWSHARES (PLAINTIFF),

VS.

UNITED STATES OF AMERICA (DEFENDANT),

INDICTMENT

Today, through our nonviolent action, we, Kings Bay Plowshares—indict the United States government, President Donald Trump, Kings Bay Base Commander Brian Lepine, the nuclear triad, and specifically the Trident nuclear program.

WHEREAS, This program is an ongoing criminal endeavor in violation of international treaty law binding on the United States under the supremacy clause of the U.S. Constitution (Article VI, Section 2): This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

WHEREAS, The United States is bound by the United Nation&#x²⁷;s Charter, ratified and signed in 1945. Its preamble affirms that its purpose is to “save future generations from the scourge of war." It directs that "all nations shall refrain from the use of force against another nation." Article II regards the threat to use nuclear weapons as ongoing international criminal activity.

WHEREAS, The Nuremberg Principles, also promulgated in 1945, primarily by the U.S., prohibit crimes against peace, crimes against humanity, war crimes and genocide. They render nuclear weapons systems prohibited, illegal, and criminal under all circumstances and for any reason.

WHEREAS, The U.S. government is obligated as well by the Non-Proliferation Treaty, in force since 1970 that requires the signers to pursue negotiations in good faith and to eliminate nuclear weapons at an early date. The U.S. government is also obligated by the Comprehensive Test Ban Treaty, which prohibits full-scale nuclear explosions.

WHEREAS, the members of the United Nations are currently negotiating a treaty to prohibit nuclear weapons, leading towards their total elimination.

THEREFORE, the work being done at Kings Bay Naval Submarine Base violates all these agreements and is thus criminal.

Against these continuing violations of treaty law, we assert our right and duty to civil resistance against nuclear weapons. Furthermore, we affirm as crucial the human right to be free from these crimes. The Nuremberg Principles not only prohibit such crimes but oblige those of us aware of the

The ongoing building and maintenance of Trident submarines and ballistic missile systems constitute war crimes that can and should be investigated and prosecuted by judicial authorities at all levels. As citizens, we are required by International Law to denounce and resist known crimes.

For the sake of the whole human family threatened by nuclear weapons, and for the sake of our Planet Earth, which is abused and violated, we indict the Kings Bay Naval Submarine Base and all government officials, agencies, and contractors as responsible for perpetuating these war crimes.

Meanwhile, Trotta proceeded with other individuals to the highly secured “Limited Area” where they cut through fencing and concertina wire and entered the area. There they displayed banners protesting the morality of nuclear weapons and prayed.

After several hours, all seven individuals were apprehended peacefully by security. They all were subsequently indicted on charges of: (1) conspiracy, in violation of¹⁸ U.S.C. §§ 371 and 2; [fn⁵] (2) destruction of property on a naval installation, in violation of¹⁸ U.S.C. §§ 1363 and 2; [fn⁶] (3) depredation of government property, in violation of¹⁸ U.S.C. §§ 1361 and 2; [fn⁷] and (4) trespass, in done by a co-conspirator in furtherance of the conspiracy.” See United States v. Loyd, 743 F. 2d 1555, 1561 (11th Cir. 1984).

Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property

As relevant to this appeal, Grady, Hennessy, and Trotta each filed virtually identical motions to dismiss the indictment, arguing that their prosecution violated RFRA. Specifically, they asserted that their actions at the Kings Bay naval base were "in accordance with their deeply held religious beliefs that nuclear weapons are immoral and illegal," and the government&#x²⁷;s prosecution of them substantially burdened their religious exercise in violation of RFRA. They maintained that, under RFRA, the government could not show that the decision to charge the defendants was the least-restrictive means of furthering its compelling interests in the safety and security of the base. Grady, Hennessy, and Trotta proposed the following less which has been or is being manufactured or constructed for the United States, or any department or agency thereof, or attempts to commit any of the foregoing offenses, shall be punished as follows:

If the damage or attempted damage to such property exceeds the sum of $1,000, by a fine under this title or imprisonment for not more than ten years, or both; if the damage or attempted damage to such property does not exceed the sum of $1,000, by a fine under this title or by imprisonment for not more than one year, or both.

“Whoever, within the jurisdiction of the United States, goes upon any military, naval, . . . post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation . . . Shall be fined under this title or imprisoned not more than six months, or both.”¹⁸ U.S.C. § 1382.

The government opposed the motions.

Following a two-day evidentiary hearing, the district court denied their motions to dismiss. The district court held that Grady, Hennessy, and Trotta had established a prima facie case under RFRA because they had shown that their actions at the Kings Bay naval base were a sincere religious exercise and that the laws in question substantially burdened their religious exercise. The district court then explained that the government met its burden of demonstrating that it had a compelling interest in the (1) safety, (2) security, and (3) smooth operation of the naval base, naval base personnel, and naval base assets. Finally, the district court explained that the government met its burden of establishing that the application of the laws in question to each of the defendants was "the least restrictive means of furthering any one of th[o]se compelling government interests.”

Grady, Hennessy, and Trotta proceeded to a jury trial and were convicted of all charges.

For sentencing purposes, the statutory maximum for the conspiracy offense was five years&#x²⁷; imprisonment. See 18 U.S.C.

§ 371. The statutory maximum for destruction of property on a naval installation was five years&#x²⁷; imprisonment. See 18 U.S.C. § 1363. The statutory maximum for depredation of government property was¹⁰ years&#x²⁷; imprisonment. See 18 U.S.C. § 1361. Finally, the statutory maximum for trespass was six months&#x²⁷; imprisonment. See 18 U.S.C. § 1382. The district court sentenced Grady to a below-guidelines sentence of¹² months and one day imprisonment to be followed by three years of supervised release. Hennessy received a below-guidelines sentence of¹⁰ months&#x²⁷; imprisonment to be followed by three years of supervised release. [fn¹⁰] And Trotta received a below-guidelines sentence of¹⁴ months&#x²⁷; imprisonment to be followed by three years of supervised release. [fn¹¹] The district court also imposed restitution in the amount of $33,503.51, for which each defendant was jointly and severally liable.

This appeal followed.

II. Discussion

A. Whether the district court erred in denying the defendants&#x²⁷; motions to dismiss the indictment under RFRA

Grady, Hennessy, and Trotta argue that the district court erred in denying their respective motions to dismiss the indictment under RFRA. They maintain that the government failed to meet its burden to prove that criminal prosecution was the least-restrictive means of achieving the government&#x²⁷;s compelling interests, particularly in light of the defendants&#x²⁷; proposed alternative of permitting symbolic disarmament on a designated area of the base.

"Generally, we review the district court&#x²⁷;s denial of a motion to dismiss an indictment for abuse of discretion." United States v. Farias, 836 F. 3d 1315, 1323 (11th Cir. 2016). However, whether government action “comports with RFRA is a pure question of law,” which is subject to de novo review. Lawson v. Singletary, 85 F. 3d 502, 511–12 (11th Cir. 1996).

RFRA provides the following protection against substantial burdens on a person&#x²⁷;s religious exercise by the government:

(a) In general

Government shall not substantially burden a person&#x²⁷;s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

Government may substantially burden a person&#x²⁷;s exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling government interest.

(c) Judicial relief

A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.

42 U.S.C. § 2000bb-1. “The term &#x²⁷;religious exercise&#x²⁷; includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." Id. §§ 2000bb-2(4), 2000cc-5(7)(A). Further, "the &#x²⁷;exercise of religion&#x²⁷; under RFRA must be given the same broad meaning that applies under [the Religious Land Use and Institutionalized Persons Act].” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 696 n.5 (2014).

Thus, to establish a prima facie RFRA claim, a defendant must first show (1) that he or she was exercising (or was seeking to exercise) his or her sincerely held religious belief, and (2) that the government substantially burdened the defendant&#x²⁷;s religious

RFRA may be raised as a defense to criminal prosecution. See 42 U.S.C. § 2000bb-1(c) (“A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government."); see also United States v. Christie, 825 F. 3d 1048, 1055 (9th Cir. 2016) (explaining that RFRA may be invoked as a defense to a criminal prosecution); United States v. Wilgus, 638 F. 3d 1274, 1279 (10th Cir. 2011) (same).

In this case, the parties agree that the defendants were exercising sincerely held religious beliefs, the government substantially burdened the defendants&#x²⁷; religious exercise, and the government has a compelling interest. Accordingly, the fourth prong in the RFRA analysis is the only prong in dispute in this appeal—whether the government met its burden of demonstrating that criminal prosecution of the defendants was the least-restrictive means of furthering its significant compelling interests in the safety and security of the naval base, naval base personnel, and naval base assets. Grady, Hennessy, and Trotta maintain that their proposed alternative of permitting their religious exercise of "symbolic disarmament” in a designated area

We thus turn to the scope of the government&#x²⁷;s burden. The least-restrictive-means standard is exceptionally demanding, and it requires the government to show that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting party. If a less restrictive means is available for the Government to achieve its goals, the Government must use it.

Holt v. Hobbs, 574 U.S. 352, 364–65 (2015) (alterations adopted) (quotations and internal citations omitted). In meeting its burden, the government must refute the alternative schemes proposed by the petitioners. Smith v. Owens,¹³ F. 4th 1319, 1326 (11th Cir. 2021); see also Wilgus, 638 F. 3d at 1289 (explaining that, to meet its burden, the government “must refute the alternative schemes offered by the challenger”); see also Christie, 825 F. 3d at 1061 (“At a minimum, the government must address those alternatives of which it has become aware during the course of this litigation,” and “must show that each proposed alternative either is not less restrictive&#x²⁷; within the meaning of RFRA, or is not plausibly capable of allowing the government to achieve all of its compelling interests.”). [fn¹²]

Pointing to permitted protests of other groups at the naval base, the defendants proposed that a less restrictive alternative would be for the naval base to make arrangements for them to practice symbolic disarmament in a designated area (an option that they did not pursue prior to entering the naval base). In offering this alternative, the defendants attempt to recast their religious exercise as merely requiring them to be on base property such that their religious exercise could be accommodated by the Kings Bay naval base in the same way that candlelight vigils and other religious exercises are accommodated for other groups.

Their argument for this alternative is misplaced. In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 439 (2006), the Supreme Court explained that, in enacting RFRA, “Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular [religious] practice at issue." See also Holt, 574 U.S. at 361-62 (explaining that “RLUIPA&#x²⁷;s &#x²⁷;substantial burden inquiry&#x²⁷; asks whether the government has substantially burdened" the particular religious exercise in question, “not whether the RLUIPA claimant is able to government does not bear the burden of proffering less restrictive alternatives or demonstrating that it actually considered and rejected those alternatives. See Smith,¹³ F. 4th at 1326; Knight v. Thompson, 797 F. 3d 934, 946–47 (11th Cir. 2015).

Instead, in order to be a viable least-restrictive means for purposes of RFRA, the proposed alternative needed to accommodate both the religious exercise practiced in this case— unauthorized entry onto the naval base and destructive actions, including spray painting monuments, doors, and sidewalks, pouring human blood on doors and other areas, hammering on a static missile display, hanging banners and crime scene tape, as well as removing and partially destroying signage and monuments around the naval base—and simultaneously achieve the government&#x²⁷;s compelling interests in the safety and security of the naval base, naval base assets, personnel, and critical operations. Christie, 825 F. 3d at 1061.

The defendants, however, failed to proffer a least- restrictive means that would simultaneously accommodate their

Simply put, RFRA is not a "get out of jail free card," shielding from criminal liability individuals who break into secure naval installations and destroy government property, regardless of the sincerity of their religious beliefs. Just as "no Supreme Court case supports the destruction of government, or another&#x²⁷;s, property on free exercise grounds,” United States v. Allen, 760 F. 2d 447, 452 (2d Cir. 1985), nothing in RFRA supports destructive, national-security-compromising conduct as a means of religious exercise.

The defendants&#x²⁷; comparison of their case to that of Wisconsin v. Yoder, 406 U.S. 205 (1972), and United States v.

Hoffman, 436 F. Supp. 3d 1272 (D. Ariz. 2020), is unpersuasive. In Yoder, a First Amendment Free Exercise Clause case, the Supreme Court affirmed the Wisconsin Supreme Court&#x²⁷;s decision overturning Amish parents&#x²⁷; convictions for violating the state&#x²⁷;s compulsory school attendance law based on the Free Exercise Clause. 406 U.S. at 207. The Court explained that schooling beyond the eighth grade was contrary to the Amish faith, and the state&#x²⁷;s facially neutral compulsory attendance law “severe[ly]" burdened the practice of the Amish religion—it compelled the Amish, "under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs." Id. at 210–11, 218, 220–21. The Court held that the State failed to meet its burden of showing how its interest in educating citizens so that they could participate effectively and intelligently in society would be adversely affected by granting an exemption to the Amish—particularly considering the Amish&#x²⁷;s alternative mode of informal vocational education beyond the eighth grade. Id. at 222-229, 235–36. In other words, the State failed to show that its asserted compelling interest could not be achieved with an exception to the compulsory education law for the Amish.

And in Hoffman, members of “No More Deaths,” a faith- based humanitarian aid organization associated with the Unitarian Universalist Church, entered a wildlife refuge without a permit, drove on a restricted-access road, and left food, water, and other supplies along foot trails frequently used by persons entering the United States unlawfully, in an effort to prevent

Unlike the situations presented in Yoder and Hoffman, however, as explained previously, it would be impossible to achieve all of the government&#x²⁷;s compelling interests in the safety and security of the Kings Bay naval base, its base personnel, and its base assets and also accommodate the defendants&#x²⁷; destructive religious exercise in this case. The need for the uniform application of laws prohibiting unauthorized entry on naval base property, as well as the depredation and destruction of naval base assets, are the least-restrictive means of achieving the government&#x²⁷;s compelling interest in national security—an interest of the highest order—and precludes the recognition of the proposed exceptions to these criminal laws, even under RFRA. See, e.g., O Centro, 546 U.S. at 436 (“We do not doubt that there

B. Whether the district court erred when it held the defendants jointly and severally liable for the full amount of restitution

Grady, Hennessy, and Trotta argue that the district court erred in holding them jointly and severally liable for the full amount of the ordered restitution—$33,503.51. [fn¹³] They maintain

“We review de novo the legality of an order of restitution, but review for abuse of discretion the determination of the restitution value of lost or destroyed property. We review for clear error factual findings underlying a restitution order.” United States v. Robertson, 493 F. 3d 1322, 1330 (11th Cir. 2007) (quotation and internal citations omitted); cf. United States v. Alas, 196 F. 3d 1250, 1251 (11th Cir. 1999) (reviewing imposition of joint and several liability for restitution for an abuse of discretion).

The Mandatory Victims Restitution Act provides that the district court “shall order” restitution for certain offenses, including "an offense against property under [Title¹⁸],” like the offenses in this case. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A). Section 3664 sets forth the procedures for ordering restitution and provides that the district court “shall order restitution to each victim in the full amount of each victim&#x²⁷;s losses as determined by the court." Id. § 3664(f)(1)(A). Moreover,

[i]f the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim&#x²⁷;s loss and economic circumstances of each defendant.

Id. § 3664(h) (emphasis added). Accordingly, "a district court does not exceed its authority by ordering a defendant to pay restitution for losses which result from acts done in furtherance of the conspiracy of which the defendant is convicted.” United States v. Obasohan, 73 F. 3d 309, 311 (11th Cir. 1996); see also United States v. Davis, 117 F. 3d 459, 462–63 (11th Cir. 1997) (concluding that the district court did not err in holding the defendants jointly and severally liable for the full amount of the losses because the defendants had substantial involvement in the fraud scheme that caused the losses and “a defendant is liable for reasonably foreseeable acts of others committed in furtherance of the conspiracy for which the defendant has been convicted”).

Here, the losses in question resulted from acts which were part of the conspiracy of which Grady, Hennessy, and Trotta were convicted. Therefore, the district court had the authority to hold them jointly and severally liable for the full amount of restitution.¹⁸ U.S.C. § 3664(h); Obasohan, 73 F. 3d at 311. Accordingly, the district court did not abuse its discretion or otherwise err in holding the defendants jointly and severally liable for the full amount of the restitution.

C. Whether the district court erred in denying a reduction for acceptance of responsibility for Hennessy and Trotta

Hennessy and Trotta argue that the district court abused its discretion when it denied their respective requests for acceptance- of-responsibility reductions under U.S.S.G. § 3E1.1. They maintain that they never denied engaging in the conduct in

"We review the district court&#x²⁷;s determination of acceptance of responsibility only for clear error. [The] determination that a defendant is not entitled to acceptance of responsibility will not be set aside unless the facts in the record clearly establish that a defendant has accepted personal responsibility.” United States v. Amedeo, 370 F. 3d 1305, 1320–21 (11th Cir. 2004) (quotation and internal citation omitted); see also United States v. Andres, 960 F. 3d 1310, 1318 (11th Cir. 2020) (same).

U.S.S.G. § 3E1.1(a) instructs the district court to decrease a defendant&#x²⁷;s base offense level by two if he "clearly demonstrates acceptance of responsibility for his offense." The commentary to the Guidelines indicates that this reduction “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1(a), cmt. (n.2). “[T]he reduction is intended to reward defendants who express contrition for their wrongdoing and evidence a desire to reform their conduct.” Andres, 960 F. 3d at 1318 (quotation omitted).

Nevertheless, the commentary notes that a "[c]onviction by trial . . . does not automatically preclude a defendant from consideration for such a reduction," although such instances in

In denying the reduction for Hennessy and Trotta, the district court found that neither defendant had clearly demonstrated acceptance of responsibility because they continued to deny the illegality of their actions and put the government to its burden of proof. This finding was not clearly erroneous and is supported by the record.

Prior to trial, the defendants filed notices of intent to present a RFRA defense at trial to which the government objected. The district court sustained the government&#x²⁷;s objection and held that it had already addressed the RFRA issue in denying the defendants&#x²⁷; motions to dismiss the indictment, and the defendants could not relitigate it before the jury. At trial, while

The defendants cannot argue that they proceeded to a jury trial in order to continue to challenge the applicability of the criminal statutes to their allegedly religious conduct, because they were not permitted to raise a RFRA defense at trial. While each

Moreover, we note that, at sentencing, the district court stated that, "regardless of how the guidelines objections had come out," it would have imposed the same sentence for both Hennessy and Trotta. Accordingly, any alleged error in failing to award Hennessy and Trotta reductions for acceptance of responsibility was harmless. See United States v. Keene, 470 F. 3d 1347, 1348-49 (11th Cir. 2006) (holding that a guidelines error is harmless if the district court unambiguously expressed that it would have imposed the same sentence, regardless of the guidelines calculation).

D. Whether the district court erred when it used the total damages amount to enhance Hennessy&#x²⁷;s base offense level under U.S.S.G. § 2B1.1(b)(1)(C)

Hennessy argues that the district court abused its discretion when it used the total loss amount of $33,503.31 to increase her base offense level under U.S.S.G. § 2B1.1(b)(1)(C). She maintains that the government failed to present any evidence of the loss

The district court&#x²⁷;s interpretation of the Guidelines and the application of the Guidelines to the facts are reviewed de novo. United States v. Mandhai, 375 F. 3d 1243, 1247 (11th Cir. 2004). When the government seeks to apply an enhancement under the Sentencing Guidelines over the defendant&#x²⁷;s factual objection, the government has the burden of introducing sufficient and reliable evidence to prove the necessary facts by a preponderance of the evidence. United States v. Washington, 714 F. 3d 1358, 1361 (11th Cir. 2013). “The district court is permitted to base its loss determination on factual findings derived from, among other things, evidence heard during trial, undisputed statements in the

[presentence investigation report (&#x²⁷;PSI&#x²⁷;)], or evidence presented during the sentencing hearing.” United States v. Bradley, 644 F. 3d 1213, 1290 (11th Cir. 2011) (quotation omitted).

U.S.S.G. § 2B1.1 applies to offenses involving property damage or destruction. See U.S.S.G. § 2B1.1. It directs the court to increase the offense level by four if the loss exceeded “more than $15,000" but was less than $40,000. Id. § 2B1.1(b)(1)(C). The commentary further provides that "[t]he court need only make a reasonable estimate of the loss. The sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidence. For this reason, the court&#x²⁷;s loss determination is entitled to appropriate deference.” Id. § 2B1.1 cmt. (n.3(C)).

Because Hennessy&#x²⁷;s convictions were based upon her participation in a criminal conspiracy, relevant conduct under the Guidelines included "all acts and omissions of others that were . . . (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). To determine what acts of other co-conspirators are reasonably foreseeable to a defendant, the court must engage in a two-prong analysis. United States v. McCrimmon, 362 F. 3d 725, 731 (11th Cir. 2004). First, the court must determine the "scope of criminal activity the defendant agreed to jointly undertake." Id. Then, the court must “consider all reasonably

The evidence at trial established that Hennessy helped plan the actions at the Kings Bay naval base with the other Plowshares members for over two years. And on the night in question, she went to the naval base with the group knowing that they were armed with bolt cutters, a pry bar, spray paint, bottles of human blood, and other tools. Although she contends that she had no way of knowing what specific actions her codefendants would use those tools for once on the naval base, given her knowledge of the overall plan to conduct symbolic yet destructive disarmament, the district court did not err in determining that the acts of her codefendants were reasonably foreseeable to Hennessy. Accordingly, the district court did not err in holding her accountable for the entire loss amount when imposing the U.S.S.G. § 2B1.1 enhancement. [fn¹⁶] Bradley, 644 F. 3d at 1290; McCrimmon, 362 F. 3d at 731.

E. Whether the district court erred in failing to address Grady&#x²⁷;s RFRA-related sentencing argument

At sentencing, Grady argued that RFRA must be considered in the context of the¹⁸ U.S.C. § 3553(a) factors when determining the appropriate sentence. The district court then imposed a below-guidelines total sentence of¹² months and one day imprisonment to be followed by three years of supervised release, citing Grady&#x²⁷;s health issues as a reason for the lesser sentence. When asked whether she had any objections, Grady stated that she did not. [Id. at 95–96] However, now on appeal, Grady argues that the district court failed to address her argument that RFRA must be considered in the context of the § 3553(a) factors. She acknowledges, however, that “a body of law upon which this argument rests has not been specifically developed as yet."

When, as here, a defendant fails to object to an alleged sentencing error before the district court, we review for plain proven beyond a reasonable doubt to avoid the constitutional concerns associated with judicial factfinding as articulated in Apprendi is squarely foreclosed by this Court&#x²⁷;s precedent. See United States v. Dudley, 463 F. 3d 1221, 1228 (11th Cir. 2006) (holding that there is no error under Apprendi when the defendant is not sentenced beyond the statutory maximum and “district courts may still impose fact-based sentencing enhancements under an advisory guidelines system without violating the Sixth Amendment”).

F. Whether the district court abused its discretion in failing to give Grady&#x²⁷;s requested mistake-of-fact jury instruction

At trial, Grady requested that the district court instruct the jury as to mistake of fact. [fn¹⁷] Specifically, she argued that she had

An honest mistake of fact is a complete defense to the charge in the indictment because it is inconsistent with the existence of willfulness, which is an essential part of the charge.

Such an honest mistake negates the criminal intent of a defendant when the defendant&#x²⁷;s acts would be lawful, if the facts were as she supposed them to be. The burden of proof is not on the Defendant to prove her honest belief of a mistaken fact, since she has no burden to prove anything.

A defendant whose actions are based on her honest belief that she was acting lawfully is not chargeable with willful criminal conduct-even if her belief was erroneous or mistaken.

"A criminal defendant has the right to have the jury instructed on her theory of defense . . . . A trial court may not refuse to charge the jury on a specific defense theory where the proposed instruction presents a valid defense and where there has been some evidence adduced at trial relevant to that defense." United States v. Ruiz, 59 F. 3d 1151, 1154 (11th Cir. 1995) (quotations and internal citations omitted). “We review a district court&#x²⁷;s refusal to give a requested jury instruction for abuse of discretion.” United States v. Gumbs, 964 F. 3d 1340, 1347 (11th Cir. 2020) (quotation omitted).

A district court abuses its discretion if the requested instruction was a correct statement of the law, the subject matter of the instruction was not substantially covered by other instructions, and the instruction dealt with an issue in the trial court that was so important that failure to give it seriously impaired the defendant&#x²⁷;s ability to defend himself. Id. (alteration adopted) (quotation omitted). Here, the district court did not abuse its discretion in declining to give the mistake- of-fact instruction.

To prove destruction of government property on a naval installation, the government had to prove beyond a reasonable doubt that Grady (1) willfully and maliciously; (2) destroyed or injured (or attempted to destroy or injure); (3) any structure, conveyance, or other real or personal property; (4) located within the special maritime and territorial jurisdiction of the United States. See 18 U.S.C. § 1363. Similarly, to prove depredation of

There is no question that Grady acted consciously and deliberately. The fact that she honestly believed her actions were lawful because of her personal views on nuclear weapons is irrelevant. See Kelly, 676 F. 3d at 919 ("[E]ven defendants who genuinely believe that their intentional, unlawful actions are consistent with &#x²⁷;the conscience of the people,&#x²⁷; as appellants put it, are guilty."); United States v. Moylan, 417 F. 2d 1002, 1009 (4th Cir. 1969) (holding that “the law does not allow the seizure of public records and their mutilation or destruction, even when this is done as an act of conscience to dramatize the protest of a

From the earliest times when man chose to guide his relations with fellow men by allegiance to the rule of law rather than force, he has been faced with the problem how best to deal with the individual in society who through moral conviction concluded that a law with which he was confronted was unjust and therefore must not be followed. Faced with the stark reality of injustice, men of sensitive conscience and great intellect have sometimes found only one morally justified path, and that path led them inevitably into conflict with established authority and its laws. Among philosophers and religionists throughout the ages there has been an incessant stream of discussion as to when, if at all, civil disobedience, whether by passive refusal to obey a law or by its active breach, is morally justified. However, they have been in general agreement that while in restricted circumstances a morally motivated act contrary to law may be ethically justified, the action must be non-violent and the actor must accept the penalty for his action. In other words, it is commonly conceded that the exercise of a moral judgment based upon individual standards

The defendants&#x²⁷; motivation in the instant case—the fact that they engaged in a protest in the sincere belief that they were breaking the law in a good cause—cannot be acceptable legal defense or justification. Their sincerity is beyond question. It implies no disparagement of their idealism to say that society will not tolerate the means they chose to register their opposition to the war. If these defendants were to be absolved from guilt because of their moral certainty that the war in Vietnam is wrong, would not others who might commit breaches of the law to demonstrate their sincere belief that the country is not prosecuting the war vigorously enough be entitled to acquittal? Both must answer for their acts.

417 F. 2d at 1008–09 (emphasis added); see also United States v. Douglass, 476 F. 2d 260, 262–64, 264 n.7 (5th Cir. 1973) (citing Moylan with approval and rejecting defendant&#x²⁷;s argument that he did not "willfully” violate²⁶ U.S.C. § 7603 by refusing to file taxes because he believes the IRS is unconstitutional and that voluntary payment of taxes is treason, concluding that it is not a defense that his act was done in protest of government policies).

Accordingly, because mistake of fact was not a valid defense in this case, the district court did not abuse its discretion in declining to give the requested jury instruction.

20-14341 Opinion of the Court 39

III. Conclusion

Because Grady, Hennessy, and Trotta are not entitled to relief on any of their claims, we affirm their convictions and sentences.

AFFIRMED.

[fn 1]: The Plowshares Movement is a “Roman Catholic protest and activism group opposed to nuclear weapons.” The movement&#x²⁷;s name comes from the Bible verse, Isaiah 2:4, which provides: “He will judge between the nations and will settle disputes for many peoples. They will beat their swords into plowshares and their spears into pruning hooks. Nation will not take up sword against nation, nor will they train for war anymore."

[fn 2]: Concertina wire is “an entanglement of coiled usually barbed wire that can be use[d] as an obstacle." Concertina wire, Webster&#x²⁷;s Third New International Dictionary Unabridged (2005), https://unabridged.merriam-webster.com/unabridged/concertina%20wire (last visited November²², 2021).

[fn³]: The indictment stated as follows:

[fn 4]: The fact that Grady, Hennessy, and Trotta did not personally engage in these additional acts is not relevant because they are each “liable for any act

[fn⁵]: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”¹⁸ U.S.C. § 371.

[fn⁶]: “Whoever, within the special maritime and territorial jurisdiction of the United States, willfully and maliciously destroys or injures any structure, conveyance, or other real or personal property, or attempts or conspires to do such an act, shall be fined under this title or imprisoned not more than five years, or both, and if the building be a dwelling, or the life of any person be placed in jeopardy, shall be fined under this title or imprisoned not more than twenty years, or both.”¹⁸ U.S.C. § 1363.

[fn⁷]: Section 1361 provides:

[fn 8]: 18 U.S.C. § 1361.

[fn⁹]: Grady&#x²⁷;s advisory guidelines range was²¹ to²⁷ months&#x²⁷; imprisonment.

[fn¹⁰]: Hennessy&#x²⁷;s advisory guidelines range was¹⁵ to²¹ months&#x²⁷; imprisonment.

[fn¹¹]: Trotta&#x²⁷;s advisory guidelines range was²¹ to²⁷ months&#x²⁷; imprisonment.

[fn¹²]: To the extent that Grady argues that the government was required to proffer less restrictive alternatives and failed to do so, she is wrong. The

[fn¹³]: The government contends that only Hennessy and Trotta make this argument, but this contention ignores Grady&#x²⁷;s statement of adoption in her brief.

[fn¹⁴]: For instance, at the hearing on the motion to dismiss the indictment, Trotta testified that the group would not have hesitated to destroy nuclear- related hardware and was “disappointed” that they did not encounter a submarine while on the base, and that if they had, they would not have hesitated to engage in further symbolic disarmament and “transform it.” Later, at his sentencing, Trotta asserted that all of his criminal history is for acts in opposition to “American war crime[s]” and indicated that "what our country needs desperately is for a great deal more resistance to its ongoing foreign policy which is a threat to the globe and not merely through nuclear weapons, but even through simply the ongoing wars.” Similarly, following the jury&#x²⁷;s guilty verdict, Hennessy made a statement to the media outside the courthouse implying that she was willing to continue to engage in this type of conduct again stating, "[t]he efficiency of the state can never be underestimated; yet, we proceed in humility. The weapons are still there. The treaties are being knocked down one after the next. But we are called to keep trying, and we will do this together. We have no other choice.”

[fn¹⁵]: Although the events at the Kings Bay naval base may have been Hennessy&#x²⁷;s first Plowshares-related action, like her codefendants, Hennessy was no stranger to protests and similar demonstrations. Hennessy, who is in her 60s, described herself at the evidentiary hearing as a nonviolent "anarchist[]," and admitted that she had been arrested (but never convicted) numerous times dating back to 1979 for her protest-related activities in opposition to nuclear power plants and Guantanamo Bay. When asked to estimate how many times she had been arrested, she stated “not enough times” although we note that according to her PSI, she was arrested¹⁶ times between 2008 and 2018 alone.

[fn¹⁶]: Hennessy also argues that the district court&#x²⁷;s determination of the loss amount was improper in light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), in which the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Hennessy was sentenced to¹⁰ months&#x²⁷; imprisonment, which is well below the statutory maximum—a total of 20.5 years and, therefore, Apprendi has no application here. Moreover, Hennessy&#x²⁷;s assertion that the loss amount had to be submitted to a jury and

[fn¹⁷]: Grady requested the following jury charge: