United States v. Ashford, No. 12-4477 (4th Cir. 2013)
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Defendant, convicted of illegal possession of a firearm, appealed the district court's application of a cross reference and substitution of the offense level for attempted second-degree murder because defendant had used the firearm on the day of his arrest to shoot another person. The court rejected the government's plain error argument and reviewed defendant's first claim of error de novo; the district court properly imposed a cross reference pursuant to U.S.S.G. 1B1.3(a)(1) because defendant's substituted offense of attempted second-degree murder clearly occurred "during the commission" of the offense of conviction; and the district court did not clearly err in imposing a cross reference to attempted second-degree murder.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4477 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JAMES ANTHONY ASHFORD, a/k/a Pop A Lot, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Margaret B. Seymour, Chief District Judge. (3:11-cr-02264-MBS-1) Argued: March 22, 2013 Decided: June 20, 2013 Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Duncan and Senior Judge Hamilton joined. ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Robert Frank Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Allen B. Burnside, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, Stacey D. Haynes, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. DIAZ, Circuit Judge: Pursuant to a guilty plea, a federal district court convicted James Ashford of illegal possession of a firearm under 18 U.S.C. §§ 922(g)(1), 924(a)(2). Because Ashford had used the firearm on the day of his arrest to shoot another person, the district court applied a cross reference under § 2K2.1(c) of the United States Sentencing Guidelines ( USSG ) and substituted the offense level for attempted second-degree murder. Ashford appeals, posing two claims of error--one legal, one factual--regarding the application of that cross reference. First, Ashford contends that attempted second-degree murder was not a proper cross reference because as a non-groupable offense under USSG Relevant § 3D1.2, Conduct it is Guideline categorically of USSG excluded § 1B1.3(a)(2). from the Second, Ashford argues that the facts elicited at sentencing did not establish the requisite malice to substantiate the attempted commission of second-degree murder. For the reasons set forth below, we affirm. I. A. The relevant events concern an altercation at an apartment complex in Columbia, South Carolina, between two couples: James Ashford and his girlfriend Elicia Jackson, and Marcus Chaplin 2 and his girlfriend Takeya Lake. The dispute began on the morning of April 20, 2011, after Jackson learned that Chaplin had told her shoplifting. family members she had been for Jackson confronted Chaplin about the comments, and the two argued until Ashford intervened. then arrested discussed the matter and Ashford and Chaplin conciliated, as did their respective girlfriends later that day, who decided to let it go. J.A. 274. As far as Chaplin and Lake were concerned, therefore, the matter was squashed. For reasons not dispute escalated. evident from J.A. 57. the record, however, the Ashford subsequently ventured across town to retrieve his .38 caliber revolver, which as a convicted felon he possessed revolver illegally. about the When Ashford apartment returned, complex people that the gun was for [Chaplin]. and he told sported a J.A. 58. couple the of Lake relayed Ashford s threats to Chaplin, who then returned to the apartment complex. By the time Chaplin returned, Ashford had left to visit the local store. Richardson, decided to Chaplin, joined by his cousin Tevin pursue Ashford--purportedly to resolve the dispute away from the presence of children who were playing at the apartment complex. Chaplin and Richardson caught up with Ashford in a narrow alleyway between the store and the apartment complex. After a short confrontation, Ashford drew his firearm, at which point 3 Chaplin and Richardson retreated to a vehicle at the apartment complex. Ashford pursued Chaplin, who pushed a young girl away from his car and told her to go inside. Chaplin then opened the passenger side door and reached in to grab a firearm in the glove compartment. J.A. 215. However, Chaplin did not retrieve the weapon, and informed Ashford he was unarmed. Ashford then stated I should kill you, J.A. 74, and fired three shots. The first shot struck Chaplin in the groin, the second struck Chaplin s buttocks as he turned to flee, and the third missed. The wounded Chaplin stumbled before sitting down on the sidewalk. Ashford recalled that he was not angry, but scared when he shot Chaplin. J.A. 219. After the initial gun fire, Lake retrieved Chaplin s firearm from the vehicle, which, in turn, prompted Ashford to fire two errant shots at Lake. Ashford then asked a neighbor to drive him away from the scene. However, the police stopped the car, arrested Ashford, and seized the firearm. B. Ashford pleaded guilty to illegally possessing a firearm as a convicted 924(a)(2). calculated felon The a months--based in violation presentence Guidelines on a cross of 18 U.S.C. investigation range of reference murder under USSG § 2K2.1(c). §§ 922(g)(1), report ( PSR ) the statutory maximum--120 to attempted first-degree Ashford objected to the cross 4 reference. the PSR Following a hearing, the court adopted the facts in concluded that was offense and the appropriate attempted second-degree cross-referenced murder--resulting Guidelines range of 110 120 months imprisonment. sentenced Ashford to 120 months. in a The court Ashford now appeals. II. A. We first consider the appropriate standard of review. Ordinarily, when determining whether a district court properly applied the advisory Guidelines, including its application of a cross reference, we review the district court s legal conclusions de novo and its factual findings for clear error. United States v. Layton, (emphasis omitted). the government Appellate filed Procedure supplemental 564 F.3d 330, 334 (4th Cir. 2009) Just days before oral argument, however, a letter 28(j), authorities, pursuant which permits asserting that to Federal the Rule of submission of Ashford waived the issue of whether USSG § 1B1.3(a)(2) prohibits a cross reference to a non-groupable offense. We decline this eleventh-hour request to review Ashford s claim for plain error, as the government itself failed to raise any such argument in its opening brief. Regardless of whether a party may truly waive[] waiver, United States v. Cone, 714 5 F.3d 197, 224 (4th Cir. 2013) (Wynn, J., concurring in part and dissenting in part), we exercise our discretion in this case to excuse any supposed waiver by Ashford. See United States v. Holness, 706 F.3d 579, 592 (4th Cir. 2013) ( Thus, we possess the discretion under appropriate circumstances to disregard the parties inattention to a particular argument or issue. ). We do not countenance a litigant s use of Rule 28(j) as a means to advance authorities. new arguments couched as supplemental Indeed, considering an argument advanced for the first time in a Rule 28(j) filing is not only unfair to the appell[ant], it also creates the risk of an improvident or illadvised opinion being issued on an unbriefed issue. United States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006). Here the late timing of the government s Rule 28(j) letter prevented Ashford from contesting the government s waiver argument, and under these circumstances waiver must be a two-way street. In fact, we have identified procedural ambush as a scenario that warrants an exception to the rules of waiver. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). United States v. Accordingly, in the interests of fairness and the integrity of the Federal Rules of Appellate Procedure, we reject the government s plain argument and review Ashford s first claim of error de novo. 6 error B. In the event of a conviction for illegal possession of a firearm, USSG § 2K2.1(c) authorizes a district court to substitute the offense level for any criminal offense that the defendant committed or attempted to commit in connection with the possession of the firearm. This cross reference may only apply if the underlying offense qualifies as relevant conduct as defined by USSG § 1B1.3(a). See United States v. Pauley, 289 F.3d 254, 258 (4th Cir. 2002). cross references shall be USSG § 1B1.3(a) provides that determined on the basis of following: (1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense; (2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction; 7 the (3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and (4) any other information specified in the applicable guideline. USSG § 1B1.3(a) (emphasis added). Ashford maintains that all four subsections must apply to sustain excludes a cross crimes reference. against Because the person USSG expressly grouping, from § 3D1.2 including attempted murder, Ashford contends that USSG § 1B1.3(a)(2) is not satisfied, and the district court should not have applied a cross reference. The government, subsections disjunctively. however, reads the four In other words, a cross reference may apply either to a non-groupable offense committed during the commission of the offense of conviction under USSG § 1B1.3(a)(1), or to a groupable offense committed within the same course of conduct or common scheme or plan as the offense of conviction under USSG § 1B1.3(a)(2). Because the attempted murder occurred on the same day using the very firearm that Ashford had illegally possessed, the government contends that this non-groupable offense satisfies--and need only satisfy-- subsection (a)(1) of the Relevant Conduct Guideline. We interpret the Sentencing Guidelines according to the ordinary rules of statutory construction. United States v. Strieper, 666 F.3d 288, 293-94 (4th Cir. 2012). 8 As in all cases of statutory interpretation, our inquiry begins with the text of the statute. Chesapeake Ranch Water Co. v. Bd. of Comm rs of Calvert Cnty., 401 F.3d 274, 279 (4th Cir. 2005). We determine the plainness or ambiguity of the statutory language . . . by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. United States ex rel. Carter v. Halliburton Co., 710 F.3d 171, 189 (4th Cir. 2013) (internal quotations omitted). [W]here the statutory language is ambiguous we turn to other evidence to interpret the meaning of the provision, Johnson v. Zimmer, 686 F.3d 224, 236 (4th Cir. 2012), including the United States Divens, v. Sentencing 650 Guidelines F.3d 343, commentary. 346 (4th Cir. See 2011) (citing Stinson v. United States, 508 U.S. 36, 38 (1993)). Applying these principles, we observe that the text of USSG § 1B1.3(a) indeed connects subsections (3) and (4) with the word and, suggesting that a district court must provisions in order to impose a cross reference. conjunction, logically however, constitute subsections additional (a)(3) conditions test for cross-referenced offenses. and of apply all Despite the (a)(4) some do not four-part Rather, those provisions merely supplement the district court s consideration of the two antecedent subsections. 9 In our view, there is no reason why the Guidelines would exclude all non-groupable offenses from serving as cross references when such acts are committed during the commission of the offense of conviction under subsection (a)(1). As we explained in United States v. Horton, 693 F.3d 463, 476 (4th Cir. 2012), Subsection (a)(1) of the Relevant Conduct Guideline requires a closer connection between the acts and omissions committed and the offense of conviction than does Subsection (a)(2). acts As the Relevant Conduct Guideline concerns criminal that have a factual contiguity to the offense of conviction, there is no reason to require acts that satisfy this requirement to also satisfy the less proximate relevant conduct under subsection (a)(2). Johnson, 347 F.3d 635, 640 (7th Cir. criteria for See United States v. 2003) ( [T]he trailing clause of § (a)(1) is not applicable in the case of a groupable offense . . . . broader range Subsection (a)(2) allows a court to consider a of conduct than does the trailing clause of (a)(1). ). Moreover, the guideline that authorizes a cross reference in this case directs courts to apply a homicide guideline if death resulted from the cross-referenced offense. § 2K2.1(c)(1)(B). Ashford argues, See USSG This provision would make no sense if, as homicide crimes are ineligible for cross references as non-groupable offenses under USSG § 1B1.3(a)(2). 10 Just as the purpose of the Relevant Conduct Guideline and the language of USSG § 2K2.1(c)(1)(B) militate against a conjunctive reading, there are also multiple provisions in the commentary Conduct to USSG Guideline § 1B1.3 should that read be confirm that the disjunctively. Relevant First, the commentary states that [i]n certain cases, a defendant may be accountable for particular conduct subsection of this guideline. Second, the commentary commentary discusses more than one USSG § 1B1.3 cmt. n. 2(a)(1). distinguishes (a)(2) as different rules. the under Subsections (a)(1) Id. cmt. background. certain offense and Finally, conduct that relevant conduct under subsection (a)(1), not (a)(2). is Id. cmt. n. 8. Taken together, § 1B1.3(a)(1) conditions and for these (a)(2) provisions prescribe relevant demonstrate separate conduct. and Indeed, the that USSG sufficient principal precedent cited by Ashford actually supports this reading. In Horton, a defendant convicted of illegal firearm possession was sentenced based on a cross reference to first-degree murder. 693 F.3d expressly at 465. excluded Because from that grouping, offense, we USSG held § 2A1.1, that the was cross reference under USSG § 1B1.3(a)(2) could not apply and vacated the sentence. however, is Id. at 478-80. what we have The corollary of this principle, hereto 11 concluded--a non-groupable offense must instead satisfy the criteria of subsection (a)(1). In a footnote that Ashford characterizes as dicta, Reply Br. at 12, Horton suggested as much by indicating that subsection (a)(1) is an alternative basis for relevant conduct. See Horton, 693 F.3d at 476 n.13. To the extent we need principle, we do so now. to affirmatively state that Because a disjunctive interpretation of the Relevant Conduct Guideline ensure[s] that the statutory scheme is coherent and consistent, Healthkeepers, Inc. v. Richmond Ambulance Auth., 642 F.3d 466, 472 (4th Cir. 2011), we agree with our sister circuits that a cross-referenced offense may satisfy either subsection (a)(1) or (a)(2) of the Relevant Conduct Guideline. See United States v. McCants, 434 F.3d 557, 563 (D.C. Cir. 2006); United States v. Williams, 431 F.3d 767, 772-73 (11th Cir. 2005); Jansen v. United States, 369 F.3d 237, 248; Johnson, 347 F.3d at 637-40; United States v. Cuthbertson, 138 F.3d 1325, 1327 (10th Cir. 1998). Accordingly, where grouping, subsection consider a broader the (a)(2) range substituted applies of offense and conduct would allows a require court to than . . . (a)(1). Ashford also claims the district court erred by not specifying which provision of the Relevant Conduct Guideline justified the cross reference. Ashford though abandoned this claim by waiting until his reply brief to raise it. Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001) (per curiam). 12 Johnson, 347 F.3d at 640. offense cannot be But where, as here, a substituted grouped, the act must satisfy subsection (a)(1) and have occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting offense. to avoid detection USSG § 1B1.3(a)(1). offense of during the attempted or responsibility of that Because Ashford s substituted second-degree commission for the murder offense clearly of occurred conviction, the district court properly imposed a cross reference pursuant to USSG § 1B1.3(a)(1). C. We next address Ashford s secondary argument that even if a cross reference applies, the district court erred in determining the substituted offense. According to Ashford, the facts in the PSR failed to establish the elements of attempted second-degree murder, and at most voluntary manslaughter. district novo. court for substantiate a finding of attempted We review the factual findings of the clear error and all legal conclusions de United States v. Medina-Campo, 714 F.3d 232, 234 (4th Cir. 2013). Murder malice is the aforethought, unlawful 18 killing U.S.C. § of 1111, a human while being with [voluntary] manslaughter is the unlawful killing of a human being without malice. . . . [u]pon a sudden quarrel or heat of passion. 13 18 U.S.C. § 1112(a). First-degree murder requires proof of premeditation, while second-degree murder simply requires proof of malice aforethought, [which] may be established by evidence of conduct which is reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm. United States v. Williams, 342 F.3d 350, 356 (4th Cir. 2003). We have no trouble affirming the district court s decision on the facts of record. It was Ashford who reignited the dispute by driving across town to retrieve his revolver hours after the neighbors initial that he altercation intended to that use morning, the firearm and warning on Chaplin. Ashford then made good on his threat, telling Chaplin I should kill you before firing three shots, two of which hit Chaplin. Even if Chaplin shares some blame by virtue of his decision to confront Ashford in the alleyway, Ashford was not angry or in danger when he drew his firearm and pursued the fleeing Chaplin. These facts exhibit the wanton behavior that warranted an inference of malice. There was nothing sudden about the quarrel, and the heat of passion mitigator plainly does not apply to an aggressor who is not angry, and has multiple opportunities to walk away from a dispute that he incited. 14 Accordingly, the district court did not clearly err in imposing a cross reference to attempted second-degree murder. III. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED 15
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