United States v. Alexander Murillo
526 F. App'x 192
3rd Cir.2013Background
- Murillo, on New Year’s Eve 2008 into January 1, 2009, fired an AR-15 rifle at and near Tom Foolery’s Bar in Philadelphia, injuring two people; he later fired again as he drove by the bar.
- Murillo initially admitted he fired toward attackers or at a crowd, then later described shooting at the bar while passing by.
- Murillo pled guilty to possession of a firearm by a person illegally in the United States (18 U.S.C. § 922(g)(5)(A)) and related offenses; he is undocumented since 1996.
- At sentencing, Murillo objected to applying U.S.S.G. § 2A2.1(a)(2) (base level 27 for assault with intent to kill or attempt) and argued § 2A2.2 (aggravated assault) should apply; the district court applied § 2A2.1(a)(2).
- The district court elevated the offense level for injuries, gave upward variance, and sentenced Murillo to 120 months’ imprisonment followed by three years of supervised release.
- Murillo timely appealed, challenging the Guidelines calculation; the Third Circuit affirmed the district court’s sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2A2.1(a)(2) applies for specific intent to kill | Murillo argues the conduct shows recklessness, not specific intent | Murillo contends §2A2.2 should apply for aggravated assault | §2A2.1(a)(2) properly applied; specific intent found |
| Whether the district court correctly determined Murillo acted with premeditation/intent to kill | Wilson-like facts do not show premeditation | Murillo acted with purposeful, not reckless, conduct | Court correctly found specific intent based on admissions and sequence of acts |
Key Cases Cited
- United States v. Wilson, 992 F.2d 156 (8th Cir. 1993) (upholding application of §2A2.1 where defendant fired toward group with deadly intent)
- Gov’t of the Virgin Islands v. Rosa, 399 F.3d 283 (3d Cir. 2005) (defines first vs second degree murder for purposes of §2A2.1)
- Braxton v. United States, 500 U.S. 344 (1991) (explains attempted murder requires specific intent to kill)
- Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005) (review of intent standards in related context)