Decided: June 20, 2013
The Fourth Circuit held that the United States District Court for the District of South Carolina properly applied the offense level of attempted second-degree murder to James Ashford’s conviction of illegal possession of a firearm, via an applicable “cross reference” under section 2K2.1(c) of the United States Sentencing Guidelines (“USSG”).
In April 2011, James Ashford (“Ashford”), Marcus Chaplin (“Chaplin”), and the respective girlfriends of the two men became embroiled in a dispute at an apartment complex. After the parties seemingly had resolved the dispute, Ashford retrieved a revolver that, as a convicted felon, he possessed illegally. Ashford told “a couple of people” at the apartment complex “that the gun was for [Chaplin].” When Ashford went to a store, Chaplin and his cousin confronted him in an alleyway, supposedly to resolve the dispute. Ashford drew his gun, Chaplin retreated to the apartment complex with his cousin, and Ashford pursued Chaplin. At the apartment complex, Chaplin tried to retrieve a gun from a vehicle, but failed to do so; he told Ashford he was unarmed. However, Ashford said “I should kill you” and fired three shots, two of which hit Chaplin. Ashford said he was “not angry” when he shot Chaplin; rather, he was “scared.” Ashford was subsequently arrested, and pled guilty to illegal possession of a firearm as a convicted felon under 18 U.S.C. §§ 922(g)(1), 924(a)(2).
USSG § 2K2.1(c) allows a district court to substitute the offense level for a criminal offense committed or attempted in connection with such firearm possession, so long as the “cross-referenced” criminal offense qualifies as “relevant conduct” under USSG § 1B1.3(a). This latter guideline provides four bases for determining the applicability of a cross-reference. The first basis, USSG § 1B1.3(a)(1), applies to acts or omissions occurring “during the commission of the offense of conviction.” The second basis, USSG § 1B1.3(a)(2), applies to certain certain acts and omissions “that were part of the same course of conduct or common scheme or plan as the offense of conviction”; however, this subsection only applies to “offenses of a character for which § 3D1.2(d) would require grouping of multiple counts.” Under USSG § 3D1.2(d), crimes against the person are excluded from grouping. After a hearing, the district court substituted the offense level of attempted second-degree murder. On appeal, Ashford argued that all four bases listed in USSG § 1B1.3(a) must be satisfied for a cross-reference to apply, and since USSG § 3D1.2(d) prohibits the grouping of crimes against the person, cross-referencing attempted second-degree murder was improper under USSG § 1B1.3(a)(2); Ashford also asserted that, even if a cross-reference did apply, the facts stated in the presentence investigation report (“PSR”) did not establish the elements of attempted second-degree murder.
The Fourth Circuit concluded that the four bases for cross-referencing under USSG § 1B1.3(a) should be read disjunctively. Thus, even though Ashford’s substituted offense could not be grouped, attempted second-degree murder could still be substituted under USSG § 1B1.3(a)(1), as the substituted offense occurred during Ashford’s illegal possession of a firearm. The Fourth Circuit also concluded that the PSR stated a sufficient basis for attempted second-degree murder, as Ashford reinitiated the dispute by retrieving the revolver and telling neighbors about his intentions, Ashford told Chaplin “I should kill you” before shooting him, and Ashford was “not angry” or in danger when he drew the gun and chased Chaplin—indicating “the wanton behavior that warranted an inference of malice.”