United States v. Christopher Worrell

U
                 United States Court of Appeals
                            FOR THE DISTRICT OF COLUMBIA CIRCUIT
                                      ____________
No. 21-3020                                                September Term, 2020
                                                                     1:21-cr-00292-RCL-1
                                                      Filed On: May 5, 2021
United States of America,

              Appellee

       v.

Christopher John Worrell,

              Appellant


            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA

       BEFORE:       Millett, Wilkins, and Walker, Circuit Judges

                                     JUDGMENT

        This appeal was considered on the record from the United States District Court
for the District of Columbia and on the memoranda of law and fact filed by the parties.
The court has determined that the issues presented occasion no need for an opinion.
See D.C. Cir. Rule 36. It is

       ORDERED and ADJUDGED that the district court’s April 6, 2021 oral ruling
denying appellant’s emergency motion for reconsideration of the district court’s
detention order be affirmed.

        First, the transcript reveals that appellant did not adequately preserve his
challenge to the district court’s finding that the pepper spray gel he used was a
dangerous weapon within the meaning of the Bail Reform Act. Accordingly, review is
for plain error, which appellant has not shown. See United States v. Olano, 

507 U.S.
725

, 734 (1993) (“A court of appeals cannot correct an error . . . unless the error is clear
under current law.”) (emphasis added); United States v. Brown, 

892 F.3d 385

, 393
(D.C. Cir. 2018).

      Second, appellant has not shown that the district court’s dangerousness
determination was clearly erroneous. As this court observed in United States v.
Munchel, 

991 F.3d 1273

(D.C. Cir. 2021), with regard to January 6, “those who actually
assaulted police officers and broke through windows, doors, and barricades, and those
who aided, conspired with, planned, or coordinated such actions, are in a different
                 United States Court of Appeals
                            FOR THE DISTRICT OF COLUMBIA CIRCUIT
                                     ____________
No. 21-3020                                                September Term, 2020

category of dangerousness than those who cheered on the violence or entered the
Capitol after others cleared the way.”

Id. at 1284.

In contrast to the defendants in
Munchel, as the district court here found, appellant “actually assaulted police officers”
with pepper spray gel.

Id. And appellant has

not shown that this finding was clearly
erroneous. The district court’s dangerousness determination is further buttressed by
the threats against others—including potential witnesses—that appellant indicated to
the FBI, as well as his membership in and alleged coordination with the Proud Boys,
some of whose members have been indicted for conspiring to attack Congress. See

id.
(discussing “those who

aided, conspired with, planned, or coordinated such actions”).

       Third, appellant’s due process argument that his non-Hodgkin’s lymphoma puts
him at an increased risk of contracting COVID-19 has been overtaken by subsequent
events; the record demonstrates that he has recently been diagnosed with COVID-19.
To the extent that appellant argues that his having been diagnosed with COVID-19
independently warrants pretrial release, he should present that argument to the district
court in the first instance. See

id. at 1281–82

(“Appellants did not raise [this] argument
below, so we decline to pass on it in the first instance without the benefit of full
briefing.”); see also 18 U.S.C. § 3142(f) (providing that the district court may reopen
detention hearing based on new information).

        Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after the
resolution of any timely petition for rehearing or petition for rehearing en banc. See
Fed. R. App. P. 41(b); D.C. Cir. Rule 41.


                                       Per Curiam


                                                         FOR THE COURT:
                                                         Mark J. Langer, Clerk

                                                 BY:     /s/
                                                         Daniel J. Reidy
                                                         Deputy Clerk




                                          Page 2

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