United States v. Morgan, No. 09-5828 (6th Cir. 2012)
Annotate this CaseMorgan and his wife were in the bedroom, apparently smoking crack with others. Earlier in the day, a drug dealer had threatened to kill Morgan. Morgan’s friend, similarly threatened, had been attacked. Officers, arriving to execute a warrant, banged on the door and announced their presence. Having no response, they kicked in the door and entered the living area. Officers streamed in, continuing to announce their presence loudly, and crossed the living space to a hall that led to the bedroom, less than 20 feet away. Shots were fired from the bedroom. Debris hit an officer. The officers ordered the occupants to drop their weapons. Beverly then realized that the intruders were police officers; Morgan immediately pushed the gun between the mattress and box spring and dropped to the floor with his hands behind his head. Morgan pleaded guilty and was sentenced to 201 months’ imprisonment. The Sixth Circuit vacated. The district court impermissibly double counted discharge of the firearm, for which a 10-year mandatory minimum sentence was imposed (section 924(c)(1)(A)(iii)), by both applying the cross-reference to attempted murder in USSG 2K2.1(c)(1)(A) and imposing a 24-month upward departure for the section 924(c) conviction. Application of the attempted-murder Guideline under the prohibited-possession count was erroneous because of lack of intent to kill.
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