United States District Court, E.D. Tennessee
RONNIE GREER UNITED STATES DISTRICT JUDGE
matter is before the Court to consider objections to the
Presentence Investigation Report (“PSR”) raised
by the government, [Doc. 69]. The government argues that
“[b]ecause the defendant used the firearm he unlawfully
possessed to kill his son, U.S.S.G. § 2K2.1(c)(1)(B)
requires that the Court use the homicide guidelines when
calculating defendant's base offense level.” The
government argues that the proper homicide cross-reference is
to U.S.S.G. § 2A1.1, First Degree Murder, which applies
in cases of premeditated killings, and when “death
results from the commission of certain felonies.” The
government relies on 18 U.S.C. § 1111, which lists child
abuse as an offense to which the felony murder rule applies,
and argues that the defendant “committed child abuse
when he shot his two-year-old son in the head, and that
felony resulted in the death of the child.”
defendant objects to the Supplemental Addendum to the
Presentence Investigation Report (“PSR”),
prepared prior to the defendant's resentencing hearing,
which stated the following:
It should be noted that at the time of the defendant's
sentencing, the United States did not pursue the application
of a cross-reference or specific offense level enhancements.
Based on the facts of this case, it appears a cross-reference
to 2A1.1 could have been applied. Had this cross-reference
been applied the defendant's Total Offense Level would
have been 40, with a Criminal History Category of III, and
guideline range of 360 months to Life.
[Doc. 65]. The defendant argues that a cross-reference to
U.S.S.G. § 2A1.1, First Degree Murder, is inappropriate
because the jury in the defendant's state trial found
that he was guilty of neither first degree murder, second
degree murder, nor voluntary manslaughter. [Doc. 75]. Rather,
the defendant was convicted of criminally negligent homicide,
reckless endangerment - deadly, tampering with evidence, and
identity theft. The defendant argues that “the Court
need not look beyond the state jury verdict, as to do so
would essentially allow the government a second and third
bite at the apple and principles of double jeopardy and due
process weigh against doing so.” [Id.].
“At most, ” the defendant states, “U.S.S.G.
§ 2K2.1(b)(6) for use or possession of a firearm or
ammunition in connection with another felony offense would
result in a 4-level increase (BOL 14 4 = 18) and a total
offense level of 15 with a 3-level reduction for acceptance
of responsibility and an advisory guideline range of 24 to 30
months given his criminal history category III.”
defendant was originally sentenced in this Court to a total
term of imprisonment of 180 months on April 28, 2010, [Doc.
36], after pleading guilty to Count One of the Indictment,
which charged him with being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). [Doc.
19]. At the time of sentencing, the defendant was considered
an armed career criminal pursuant to 18 U.S.C. § 924(e)
and U.S.S.G. § 4B1.4, and was therefore subjected to the
mandatory minimum term of 180 months. Paragraph 29 of the PSR
provides as follows:
Chapter Four Enhancements: As shown in Part B (Criminal
History) below, the defendant has been convicted of at least
three prior convictions for a violent felony or serious drug
offense, or both, as defined in Title 18 U.S.C. §
924(e)(2), committed on occasions different from one another.
Since the instant offense is a conviction for Title 18 U.S.C.
§ 922(g), the defendant is an armed career criminal
within the meaning of USSG §4B1.4. Pursuant to USSG
§4B1.4(b)(3)(B), the offense level is 33 rather than the
lower level applicable from Chapters Two and Three. As the
United States will not pursue any enhancements regarding the
use of the firearm during the commission of another felony
offense, the offense level will not be determined, pursuant
to Pursuant to USSG §4B1.4(b)(3)(A).
the Sixth Circuit decision in United States v.
Stitt, 860 F.3d 854, 862 (6th Cir. 2017), which held
that conviction under the Tennessee aggravated burglary
statute did not qualify as a violent felony predicate offense
under the Armed Career Criminal Act, this Court found that
the defendant no longer qualified as an armed career
criminal, and granted the defendant's 18 U.S.C. §
2255 motion to vacate his sentence. [Doc. 54]. The defendant
is now before this Court for resentencing in this matter. A
Supplemental Addendum to the PSR was filed, calculating a
base offense level of 14, with a two-level reduction for
acceptance of responsibility, for a total offense level of
12. [Doc. 56]. The advisory guideline range for a total
offense level of 12 and criminal history category of III
amounts to 15 to 21 months of imprisonment. [Id.].
government, in its objections on resentencing, states that it
did not previously request application of the 4-level
enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for use or
possession of a firearm in connection with a felony offense,
or the homicide cross-reference under U.S.S.G. §
2K2.1(c)(1)(B) “out of professional courtesy to the
Tennessee authorities who had not yet presented their
evidence against defendant in state court.” [Doc. 69].
The government also notes that it was not necessary to seek
such enhancements during the original sentencing, due to the
defendant's armed career criminal classification and
resulting enhancement. [Id.]. Now, however, the
government requests that the enhancement be applied to the
defendant's base offense level.
clear, based on the evidence presented during the
defendant's state trial, and his conviction in this court
for possessing a firearm, that U.S.S.G. § 2K2.1(b)(6)(B)
is relevant. This guideline provision provides that if the
defendant “used or possessed any firearm or ammunition
in connection with another felony offense, ” the base
offense level should be increased by 4 levels, or, if the
resulting offense level is less than 18, increase to level
18. U.S.S.G. § 2K2.1(b)(6)(B).
of this enhancement, with a three-level reduction for
acceptance of responsibility, would result in a total offense
level of 15, and an advisory guideline range of 24-30 months.
In this case, it is clear that the defendant possessed a
firearm in connection with another felony offense. The
defendant was convicted in state court of criminally
negligent homicide following the death of his son, who was
shot with a firearm that belonged the defendant. Therefore,
the enhancement under U.S.S.G. § 2K2.1(b)(6)(B) could
properly be applied, resulting in a base offense level of 18
before acceptance of responsibility.
question remains, however, whether the cross-reference under
U.S.S.G. § 2K2.1(c)(1)(B) applies, which states:
“if death resulted, the most analogous offense
guideline from Chapter Two, Part A, Subpart 1 (Homicide), if
the resulting offense level is greater than that determined
above.” The government argues that U.S.S.G. §
2A1.1, First Degree Murder, is the most appropriate homicide
cross-reference based on a felony murder theory. Application
of § 2A1.1 would result in a base offense level of 43.
The defendant argues that the most analogous homicide
cross-reference would be to § 2A1.4(a)(1), Involuntary
Manslaughter, which sets a base offense level of 12 if the
offense involved criminally negligent conduct. [Doc. 70]. The
defendant also argues that this Court cannot base the
defendant's sentence on “information contrary to
the jury verdict, ” and that a sentence “cannot
be based upon information that the jury rejected by an
affirmative factual finding beyond a reasonable doubt.”
[Id.]. Because the jury found that the “proof
established guilt beyond a reasonable doubt for criminally
negligent homicide, ” and not greater murder offenses,
the defendant argues that this Court is bound by that
verdict, and to disregard it would weigh against principles
of double jeopardy and due process. [Id.].
this Court does not agree that it is bound by the jury's
verdict in this situation. The defendant relies on United
States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016)
for its claim that a sentencing judge cannot contradict a
jury's findings of fact. This is an accurate statement of
the holding in Pimentel-Lopez, but in that case the
sentencing judge found that the defendant was in possession
of more than 50 grams of methamphetamine, while a previous
special jury verdict found beyond a reasonable doubt that the
amount attributable to the defendant was less than 50 grams.
Id. at 1140. “This is not a case, ” the
Pimentel-Lopez court clarified, “where the
jury failed to find a fact under the exacting standard
applicable to criminal cases. Where this happens, the
district judge is free to find the same fact under a less
stringent standard of proof.” Id. (citations
omitted). See also Dowling v. United States, 493
U.S. 342, 349 (1990) (“[A]n acquittal in a criminal
case does not preclude the Government from relitigating an
issue when it is presented in a subsequent action governed by
a lower standard of proof.”); United States v.
Harris, 552 Fed App'x 432, 440 (6th Cir. 2014)
(“But a sentencing court may consider even acquitted
conduct, so long as it is proved by a preponderance of the
the U.S. Supreme Court has made clear that “a
sentencing judge may take into account facts introduced at
trial relating to other charges, even ones of which the
defendant has been acquitted.” United States v.
Watts, 519 U.S. 148, 152 (1997) (citing United
States v.Donelson, 695 F.2d 583, 590 (D.C. Cir. 1982)).
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